EBLIDA's Response

to the Amended draft Directive on the Harmonisation of Copyright in the Information Society presented by the European Commission on 21 May 1999

(Part I: Recommendations)

The "Amended proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society" by the European Commission has in some aspects taken account of the great concerns expressed by EBLIDA and many other associations on the original text and on many of the proposed amendments by European Parliament. The improved provisions made for the benefit of people with a disability, the amended wording concerning temporary copies and the improved wording on technical protection systems are especially welcomed by EBLIDA. We also appreciate the special attention given to public establishments such as libraries and archives and other teaching, educational or cultural establishments which serve the public interest.

However, further improvements are urgently needed to enable everybody, irrespective of financial or other constraints, to fully participate in and benefit from the new information society services by using the services offered by libraries and other related public institutions. We stress that all the provisions we are seeking will be subject to Article 5 (4), in line with the Berne Convention.

In the light of the continuing debate of this draft Directive especially in the Council of Ministers, we would like to draw special attention to the following issues:

1. Open list of exemptions and right to carry forward traditional exemptions

Article 5 of the amended draft Directive sets out a list of permitted exceptions, which is exhaustive. Member States will not be allowed to provide for any exceptions other than those enumerated.

This means that not only exceptions for the digital environment will be very restrictive to take account of new technologies and to further EU harmonisation but also that existing national exceptions of the analogue environment will be reduced to the listed few. In the WIPO Copyright Treaty 1996, Member States are given permission "to carry forward and appropriately extend into the digital environment limitations and exceptions in their national laws which have been considered acceptable under the Berne Convention". The EU Directive which is also aiming at implementing the WIPO Copyright Treaty must not be more restrictive than international treaties if no barriers are to be created to the Internal Market. As there is no evidence that the present traditional exemptions are distorting trade in any way, Member States must be given the option to determine themselves which traditional exemptions can be appropriately extended according to the three-step-test.

EBLIDA recommends an open list of exemptions to the reproduction right and the communication to the public right. In addition, EBLIDA recommends that traditional exemptions can be included and appropriately carried forward to the digital environment. (Recital 22, Article 5, Article 5.5. (new suggestion))

2. Access and use of a work by a lawful user

At present, experts' opinions are divided over the exact interpretation of the new "making available right" which is introduced as a specific part of the communication to the public right to address interactive on-demand transmissions. The unclear coverage and differing interpretations of the "making available right" demands clarification in certain crucial areas. According to the acquis communautaire (Recital 34 and Article 6.1. of the Database Directive) a specific provision should be introduced to ensure that lawful users can access and use a copyright work even if this involves exercising otherwise restricted acts.

3. Viewing of a work by a library user

Although the potential offering of a work on a publicly accessible site would require the authorisation of the rightholder, the actual calling up of an image for viewing by the library user is an act of temporary reproduction and thus subject to the exception given in Article 5.1. It is of crucial importance regarding access to information to state explicitly that visitors of a library can view, read or listen to electronic materials on the premises of a library without having to ask for rightholders' permission or having to pay any extra charges.

4. Member States define details for exemptions to reproduction right for libraries

In the original draft Directive, Article 5.2. (c) allowed Member States to exempt certain acts of reproduction from the reproduction right to the benefit of establishments which are accessible to the public, such as public libraries. The provision did not define those acts which may be exempted by Member States but requested that they would have to identify certain special cases which are in line with the three-step-test. In the amended draft Directive this provision is restricted to only "archiving and conservation" purposes. The European Parliament requested a restriction for "documentation and conservation purposes". Although the Commission's wording is more precise, both provisions are far too narrow and do not cover essential user services such as copying of works which are longer available on the market, indexing, or copying for interlibrary loan. It is not for a European Directive to specify in detail all certain special cases, but to provide the legal framework for Member States to define details in conformity with the three-step-test which protects rightholders.

5. Specific contracts and copyright exemptions

The explanatory memorandum of the amended Directive states that recital 28 should encourage the development of contractual arrangements for activities not covered by the exception introduced for the benefit of establishments such as libraries and other cultural institutions. This is welcomed by EBLIDA. However, this intention should also be reflected in the wording of the recital which was introduced by the European Parliament. In its present wording the promotion of specific licenses is imprecisely linked to the mere existence of an exemption ("therefore"). Exemptions granted by law should neither need coverage in a contract nor should contracts be able to override any given exemption. The latter provision is also given in the database Directive (Article 15), and corresponds therefore with the acquis communautaire.

6. No EU-wide harmonisation of fair compensation

In the original draft Directive, Member States were allowed to maintain or introduce an exemption for reprography with or without remuneration schemes for rightholders. It was rightly stated that the differences in the existing schemes do not create major barriers to the Internal Market, and that differences will be further reduced with other Member States introducing such schemes. Consequently, it was rightly stated that there is no obvious need for a further harmonisation of this exception or the remuneration schemes. The same applied to the exemption for private copying and the exemption for research and teaching.

Especially in the light of different copyright regimes in Europe, there is no justification for requesting Europe-wide harmonisation of fair compensation schemes. "Fair dealing" provisions without remuneration (as known in the Anglo-Saxon countries) cover for example the copying of a very limited part of a work and are also accepted in the digital environment by a number of rightholders. Larger amounts of copying would be covered by licenses anyway where remuneration is provided for rightholders. Other Member States have a variety of remuneration schemes, where for example the government would itself cover the costs for the copying of a much larger part of a work in libraries. We therefore recommend leaving it to the discretion of the Member States to define what constitutes "fair compensation" and to allow for zero compensation in certain cases.

7. No distinction between analogue or digital private copying

According to experts from the consumer electronics industry, there are real practical and legal difficulties in distinguishing between analogue and digital technology. Many digital recorders actually make analogue recordings and vice versa. For example, existing analogue television sets have digital set-top boxes added to them. Digital is not a "product" but a process, a "language". Most products today can handle both languages, digital and analogue.

The distinction between digital or analogue private copying, introduced by the European Parliament, is also not the solution to the problem of piracy. The Directive text clarifies that an exemption can only be given for recordings for private, strictly personal use and non-commercial ends which is clearly not piracy (unlawful multiple copies for profit). It is difficult to understand why digital private copying will be treated in a more restrictive way than analogue private copying, especially as technical systems could give greater protection against unlawful copying.

8. Lawful circumvention of technical protection systems

The amended proposal for a Directive has taken on board the immensely important distinction between the circumvention of technical protection systems for lawful purposes and the circumvention to infringe copyright. Only this distinction ensures that technical blocks cannot stop legally permitted copying. The amended recital 30 recognises that circumvention should be prevented if done without authority but that the necessary authority could be either given by the rightholder or conferred by law. We recommend also that the corresponding Article 6 reflects this important principle.

9. Summary of recommendations

1. EBLIDA recommends an open list of exemptions to the reproduction right and the communication to the public right. In addition, EBLIDA recommends that traditional exemptions can be included and appropriately carried forward to the digital environment.
2. EBLIDA recommends a provision whereby lawful users are able to access and use protected works even if this involves otherwise restricted acts.
3. EBLIDA recommends that simple viewing of digital information in a library is explicitly excepted in article 5.1. based on the wording of the original WIPO proposal for Article 7 (2).
4. EBLIDA recommends deleting the limited specific purposes for which exemptions to the reproduction right can be granted to public establishments and to leave it to the discretion of Member States to define them for certain specific cases.
5. EBLIDA recommends an improved wording to ensure that contracts are only promoted for activities which are not covered by any exemptions. In addition, contracts should not be able to override exemptions.
6. EBLIDA recommends leaving it to Member States to decide whether or not remuneration schemes would be appropriate and in which form.
7. EBLIDA recommends that no distinction be made between digital and analogue private copying, and that the wording on fair compensation is the same for both.
8. EBLIDA recommends clarifying the provision for circumvention of technical protection systems not only in a recital but in the article itself.

The Hague, 18 August 1999