Copyright and the EU Directive By Emanuella Giavarra LLM Chambers of Prof. Mark Watson-Gandy Amsterdam and London

What is copyright? Copyright, Designs and Patents Act 1988 Copyright is a property right that subsists in: –original literary, dramatic, musical or artistic works –sound recordings, films, broadcasts or cable programmes –typographical arrangement of published editions The owner of a copyright (= author or assignee) has an exclusive right: –to copy the work –to issue copies to the public –to rent or lend the work to the public –to perform, show or play a work in public –to broadcast the work or include it in a cable programme –to make adaptations (translations)

What is copyright? Duration of copyright –life of the author plus 70 years for literary, dramatic, musical and artistic works and films –50 years for sound recordings, broadcasts and cable programmes –25 years for typographical arrangements of published editions Authors moral rights –right of paternity –right of integrity

Protection by law Berne Convention ( last updated 1979) –More than 100 countries –Administration by WIPO - Geneva –Set of minimum rights National laws –All are different European Directives –Harmonization of national laws

EU Directives Directive on computer software (91) Directive on lending and rental rights (92) Directive on the duration of copyright protection (93) Directive on the protection of personal data (95) Directive on the legal protection of databases (96) Directive on the harmonisation of copyright in the IS (01)

Defences to copyright infringements Permitted acts (ss CDPA 1988) Public interest (publication of information) Authorisation/consent obtained from copyright owner (usually via a licence, contractual or implied)

New Developments United Nations -WIPO –WIPO Copyright Treaty –WIPO Performances and Phonograms Treaty (adopted 20 December 1996) European Commission –EU Copyright Directive (adopted 22 May 2001)

New rights and exceptions WCT Communication to the public right Legal protection of Technical Measures and Rights Management Information Exceptions: statements to Art 1.4 and Art 10

Statement to Art. 1.4 WCT The reproduction right, as set out in Article 9 BC, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a protected work in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 BC.

Art. 9 (1) Berne Convention Authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner and form.

Art. 9 (2) Berne Convention It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interest of the author. (= three-step-test)

Statement to Art. 10 WCT It is understood that the provisions of Article 10 permit Contracting Parties 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. Similarly, these provisions should be understood to permit Contracting Parties to devise new exceptions and limitations that are appropriate in the digital network environment.

EU Copyright Directive 2001 EU harmonisation for paper and digital environment Broad Reproduction Right (exceptions) Communication to the Public Right (exceptions) Legal Protection of Technical Measures and Rights Management Information Combination of mandatory and optional exceptions New sanctions and remedies for infringements

Art. 2 Directive Reproduction right Member States shall provide for 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.

Art. 3 Directive Communication to the Public Right Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.

Art. 5 Directive Exceptions (Summary) Art. 2 - Reproduction right exception for: –transient and incidental acts of reproduction (mandatory) –copying on paper (not sheet music), fair compensation –analogue and digital copying on any medium, by a natural person for private use, fair compensation –specific acts of reproduction by libraries, educational establishments, museums and archives, which are not for direct or indirect economic or commercial advantage

Art. 5 Directive Exceptions (Summary) Art 2 +Art 3 Communication to the public right exceptions for: –illustration for teaching or scientific research –incidental inclusion of a work –uses for the benefit of the disabled –ctp by dedicated terminals on-site, not subject to purchase or licensing terms existing exceptions of minor importance All exceptions must comply with the three-step-test!

Art. 6 Directive Technical Measures Member States shall provide protection against the circumvention of technical measures Members States shall provide legal protection against the removal and altering of certain electronic rights management information Measures to protect exceptions by voluntary agreements, if rights holder fails to do so the government is entitled to take measures Circumvention not allowed if work was made available on demand and agreed contractual terms

UK implementation Not yet implemented (deadline was ) Implementation by SI and will be kept to a minimum Major worries: –Fair dealing s. 29 (1) change: Any copying for research under statutory exception must not be for a commercial purpose (purpose known at the time of copying) –Implementation of the Communication to the Public Right –Complaint procedure of Art. 6.4 (s. 20) does not apply to an on demand service or an interactive service –Criminal sanctions s. 170 especially in relation to new draft EU Directive on enforcement of ipr infringements (refers to any ipr infringement for a commercial purpose)