The "Information Society" Directive of 22 May 2001

Directive 2001/29 of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society => Download PDF file ...

The declared aim of this Directive is, on the one hand, to transpose the level of protection provided for in the WIPO treaties of 1996 (being as far as the performers are concerned the WIPO Performances and Phonograms Treaty (WPPT)) to the "acquis communautaire" in order to be able to ratify these treaties and, on the other hand, to harmonise the exceptions to the author's right and neighbouring rights within the Member States.

Under the terms of the Article 1, the Directive duly specifies that “the present directive shall leave intact and shall in no way affect existing Community provisions” already adopted in previous Directives notably in the domain of authors' rights and neighbouring rights (except for one modification with respect to the duration of rights for phonogram producers).

Redefinition of the reproduction right

Article 2 of the Directive redefines the reproduction right, described as the “exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part ...”

This wording is taken from Article 11 of the WPPT of 1996 to which the words “in whole or in part” have been added.

Article 7 of the rental and lending directive 92/100 referred to “the direct or indirect reproduction”.

Experience will tell if, contrary to the classic conception of copyright, the option to describe a right as precisely as possible is compatible with its adaptation to new forms of exploitations.

Beneficiaries of this right are, as in the past, the authors for their works, the performers for the fixations of their performances, the phonogram producers for their phonograms, the producers of first fixations of films in respect of the original and copies of their films and, the broadcasting organisations for the fixations of their broadcasts.

The reproduction right granted under Article 1 of the Directive is not different from the reproduction right under the rental and lending Directive, but rather an attempt to redefine the reproduction right.

Exclusive right of making available to the public

Article 3 of the information society Directive is more innovative with the right of making available to the public, to the extent that in accordance with one of the declared aims of the Directive, it “implements” in the acquis communautaire Article 8 of the WCT of 1996 for the authors and Articles 10 and 14 of the WPPT for the performers and phonogram producers.

However, while in the WPPT the exclusive right of making available is granted to performers for their performances fixed in phonograms, the Directive grants such an exclusive right to performers to authorize or prohibit all the fixations of their performances and not only those fixed in phonograms.

At this point, it is interesting to examine what happens with the making available on demand of commercial phonograms. Two provisions apply to this situation.

According to Article 3, 2 of Directive 2001/29:

"Member States shall provide for the exclusive right to authorise or prohibit the making available to the public, by wire or wireless means, in such a way that members of the public may access the from a place and a time individually chosen by them:

a) for performers, of fixations of their performances”

This provision includes all types of fixed performances, including phonograms fixed on commercial phonograms. 

This provision does not appear incompatible with Article 8, 2 of the rental and lending Directive according to which:

“Member States shall provide a right in order to ensure that a single equitable remuneration is paid by the user, if a phonogram published for commercial purposes, or a reproduction of such phonogram, is used for broadcasting by wireless means of for any communication to the public, and to ensure that this remuneration is shared between the relevant performers and phonographic producers. Member states may, in the absence of agreement between the performers and phonogram producers, lay down the conditions as to the sharing of this remuneration between them.”

The making available to the public is clearly a type of communication to the public.

Therefore, one could say that performers, when signing a contract with a producer, including the transfer of their exclusive right for the making available to the public of their commercial phonograms, should receive an “equitable remuneration”.

Apart from the fact that performers rarely obtain a specific remuneration for such uses in their initial contracts, the equitable remuneration of Article 8,2 is a remuneration “paid by the user”, and not by the producer. This remuneration must be received by the performer (and the producer) from the user.

This is the logic of the guarantee given by directive 92/100, which also states that this remuneration is a “single equitable remuneration", shared between performers and producers.

The exclusive right of making available to the public of commercial phonograms does not exclude a right to an equitable remuneration for the making available of these phonograms.

The way this remuneration right is guaranteed at national level may vary. One can imagine that, in addition to an existing exclusive right, even if this right is transferred, an equitable remuneration right, as in the other field of communication to the public of commercial phonograms, is collected by performers' collective management societies, both systems being combined.

If this sounds unusual, it can be recalled that Article 4 of the rental and lending Directive provided for performers an “unwaivable right to an equitable remuneration” for the rental of phonograms or films, while the right granted to performers for rental is initially "an exclusive right to authorize or prohibit”.

Another solution could be to collectively administer the exclusive right of making available (for instance on the ground of a compulsory collective administration implemented at national level).

In practice, an equitable remuneration right is a better guarantee for performers than an exclusive right initially transferred to the producer.

The exceptions to the rights

Article 5, 1. of the Directive contains a general and mandatory exception to the reproduction right, with the following wording: “Temporary acts of reproduction referred to in Article 2, which are transient or incidental [and] an integral and essential part of a technological process and whose sole purpose is to enable:
(a) a transmission , in a network between third parties by an intermediary, or
(b) a lawful use
of a work or other subject-matter to be made, and which have no independent economic significance, shall be exempted from the reproduction right provided for in Article 2”.

According to the access and service providers of computer networks, this exception is an indispensable provision to enable the communication on the internet, notably for the necessary acts of compression/decompression, which can be considered as acts of reproduction.

The Directive includes also a limitative list of exceptions to the reproduction right, the right of communication to the public and the right of making available. The list of exceptions is a sort of compilation of all the exceptions existing in the Member States, which no Member State wanted to give up.

Only some of these exceptions are mentioned below:

1.
Article 5, 2 of the directive allows the Member States to provide limitations or exceptions to the reproduction right in the following cases:

• reproduction on paper or any similar medium, with the exception of sheet music, provided that the rightholders receive fair compensation;
• acts of reproduction made by publicly accessible libraries, educational establishments, museums or archives, which are not for direct or indirect economic or commercial advantage;
• reproductions of broadcasts made by social institutions pursuing non-commercial purposes such as hospitals and prisons, on condition that rightholders receive fair compensation.

Moreover, the Directive also provides possible exceptions or limitations to the reproduction right “in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts”, and specifies that (without mentioning if this is the mandatory aim of the exception) “the preservation of these recordings in official archives may, on the ground of their exceptional documentary character, be permitted” (Article 5, 2 (d)).

2.
Article 5, 2 (b) of the Directive stipulates that Member States may provide an exception to the reproduction right in respect of “reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation which takes account of the application or non-application of technological measures referred to in Article 6 to the work or subject-matter concerned”. 

This exception refers to the practice of private copying. The reproduction made by a natural person of a phonogram, a cassette, a film can be authorized when made for private use, without commercial purpose. The Member State which adopts such an exception in its legislation must provide for remuneration for the benefit of the rightholders, referred to in the Directive as fair compensation.

Certain categories of rightholders, like the authors and phonogram producers, wished to benefit from an exclusive right in the case of digital private copying. Besides the fact that this signifies a change in the habits of the public which considers that private copying constitutes a space of freedom, such exclusive right seems impossible to exercise with respect to copies from medium to medium and difficult to implement in the case of on-line services on the internet, where acts of copying and archiving are, once the access to the service is completed, outside the scope of any possible identification or control.

The European legislator has not been completely insensible to these demands to the extent that he has provided under Article 6 for “an adequate legal protection against the circumvention of any effective technological measure” within the Member States.

The technological measures are defined as “any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject-matter, which are not authorized by the right holder of any copyright or any right related to copyright”.

As with other exceptions, the Directive lays down that Member States shall take appropriate measures to ensure that members of the public may access the exceptions and limitations provided by national law and authorized by the Directive. In the particular case of private copying, Member States may also take such measures but Article 6.4 allows rightholders to adopt “adequate measures regarding the number of reproductions...”

Moreover, Article 6, 4, in its penultimate paragraph provides that the obligation of the Member States is to ensure that member of the public may access the limitations and exceptions, shall not apply “to works or other subject-matter made available to the public on agreed contractual terms in such a way that members of the public may access them from a place and at a time individually chosen by them.”

In the Member States where this exception exists, one can hardly conceive how certain rightholders and the phonographic industry in particular, can put in place technological devices that simply impede the private copy, or only enables a deteriorated copy or a non digital copy of an audio media.

The Directive provides that if the exception exists, Member States will have to guarantee that the public can enjoy the exception without making any distinction in function of the nature of the medium.

3.
Article 5, 3 of the Directive lists 15 possible exceptions, amongst which are:

uses for teaching or scientific research
non commercial uses for the benefit of people with a disability
uses in connection with the reporting of current events
quotations
uses during religious celebrations
uses of political speeches as well as extracts of public lectures
uses for the purpose of caricature
(...)

A more surprising exception is the use “in certain cases of minor importance where exceptions or limitations already exist under national law, provided that they only concern analogue uses and do not affect the free circulation of goods and services within the Community ...”.

The catalogue of exceptions is thus very wide.

4.
As a precaution, the European legislator has included in Article 6, 5 of the Directive a provision according to which “the exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the right holder.

The legislator and also the national judge, shall thus have an instrument of appraisal (valuation) for the justification or the opportunity of the exceptions included in national legislations in accordance with Article 5, 1 (mandatory exception), or Articles 5,2 and 5,3, commonly called the three-step test (a similar valuation instrument is provided under Article 9,2 of the Berne Convention).

These exceptions must:
only be applied in certain special cases
not conflict with a normal exploitation of the work or other subject matter
not unreasonably prejudice the legitimate interests of the rightholders.

As already mentioned, Article 6 of the Directive obliges the Member States to provide for adequate legal protection of technological measures (cfr Article 18 of the WPPT). This protection concerns the impending circumvention of any effective technological measure carried out in the knowledge or with reasonable grounds to know that one was pursuing this objective as well as the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components for the purpose of circumvention or of enabling or facilitating the circumvention.

Nevertheless, notwithstanding this legal protection and in the absence of voluntary measures taken by rightholders, Member States have the obligation to take appropriate measures to ensure that rightholders make available to the beneficiary of an exception or limitation the means to benefit from that exception or limitation (Article 6, 4).

Article 7 of the Directive provides for similar protection concerning rights-management information (cfr Article 19 of the WPPT). Rights-management information is any information provided by rightholders which identifies the work or the performance or any information about the terms and conditions of use of the work or performance. This information must be protected against any removal or alteration.