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States' Laws of Directive 2001/29/Ec On STUDY ON THE IMPLEMENTATION AND EFFECT IN MEMBER STATES’ LAWS OF DIRECTIVE 2001/29/EC ON THE HARMONISATION OF CERTAIN ASPECTS OF COPYRIGHT AND RELATED RIGHTS IN THE INFORMATION SOCIETY Final Report Institute for Information Law University of Amsterdam The Netherlands February 2007 INFORMATION SOCIETY DIRECTIVE This study was commissioned by the European Commission’s Internal Market Directorate- General, in response to the invitation to tender MARKT/2005/07/D. The study does not, however, express the Commission’s official views. The views expressed and all recommendations made are those of the authors. ii INFORMATION SOCIETY DIRECTIVE STUDY ON THE IMPLEMENTATION AND EFFECT IN MEMBER STATES’ LAWS OF DIRECTIVE 2001/29/EC ON THE HARMONISATION OF CERTAIN ASPECTS OF COPYRIGHT AND RELATED RIGHTS IN THE INFORMATION SOCIETY Final Report Lucie Guibault, IViR Guido Westkamp, Queen Mary Intellectual Property Research Institute Thomas Rieber-Mohn, NRCCL Bernt Hugenholtz, IViR Mireille van Eechoud, IViR Natali Helberger, IViR Lennert Steijger, IViR Mara Rossini, IViR Nicole Dufft, Berlecon Research Philipp Bohn, Berlecon Research Institute for Information Law University of Amsterdam The Netherlands February 2007 iii Abbreviations ALAI Association littéraire et artistique internationale art. Article arts. Articles BC Berne Convention for the Protection of Literary and Artistic Works cf. confer CFI Court of First Instance (European Court of Justice) CRi Computer Law Review International DRM Digital Rights Management e.g. for example EC European Communities ECJ European Court of Justice ECR European Court of Justice Reporter et al. et alii (and others) et seq. et sequens; as follows etc. etcetera EIPR European Intellectual Property Review EU European Union GRUR Gewerblicher Rechtsschutz und Urheberrecht GRUR Int. Gewerblicher Rechtsschutz und Urheberrecht - Internationaler Teil (Germany) i.e. id est; that is ibid. reference to source mentioned in previous note IIC International Review of Industrial Property and Copyright Law IRDI Intellectuele rechten/Droits intellectuels (journal) LAB Legal Advisory Board (of the European Commission, former DGXIII) MMR Multimedia und Recht OECD Organisation for Economic Co-operation and Development p.m.a. post mortem auctoris para. paragraph P2P Peer-to-peer networks RC International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention) sec. section SCCR Standing Committee on Copyright and Related Rights (WIPO) TPMs Technological Protection Measures TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights UCC Universal Copyright Convention UFITA Archiv für Urheber- und Medienrecht (journal) UK United Kingdom UNESCO United Nations Educational, Scientific and Cultural Organization USA United States of America WCT WIPO Copyright Treaty WIPO World Intellectual Property Organisation WPPT WIPO Performances and Phonograms Treaty WTO World Trade Organisation ZEUP Zeitschrift für Europäisches Privatrecht ZUM Zeitschrift für Urheber- und Medienrecht Preface Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society entered into force on 22 June 2001.1 The objectives of the Directive were twofold: (1) to adapt legislation on copyright and related rights to reflect technological developments, and (2) to transpose into Community law the main international obligations arising from the two treaties on copyright and related rights adopted within the framework of the World Intellectual Property Organisation (WIPO) in December 1996.2 The Directive was one of the centrepieces of the original Lisbon Agenda of 2000. The recently renewed Lisbon agenda aims at fostering economic prosperity, jobs and growth, in particular by boosting the knowledge- based economy, and by enhancing the quality of Community regulation (‘better regulation’). In doing so, the original Lisbon aim, to make the European Union “the most dynamic and competitive knowledge-based economy in the world” by 2010, remains intact. It goes without saying that a legislative framework for copyright and related rights in the information society that fosters the growth of the knowledge-based economy in the European Union is a crucial element in any strategy leading towards that goal. This study, commissioned by the European Commission, examines the application of the Directive in the light of the development of the digital market. Its purpose is to consider how Member States have implemented the Directive into national law and to assist the Commission in evaluating whether the Directive, as currently formulated, remains the appropriate response to the continuing challenges faced by the stakeholders concerned, such as rights holders, commercial users, consumers, educational and scientific users. As set out in specifications of the study set out by the Commission, its aim is “to assess the role that the Directive has played in fostering the digital market for goods and services in the four years since its adoption” (Letter of Invitation to Tender, 25th July 2005). The impact of the Directive on the development of digital (chiefly online) business models, therefore, will be the focal point of our enquiry throughout this study. The adoption of the Information Society Directive marked the conclusion of several years of enquiry and discussions at the European Commission on the challenges brought about for the information society by the emergence of the digital networked environment. One of the key documents published on the issue was the Commission’s Green Paper of 1995 on Copyright and Related Rights in the Information Society.3 The Commission introduced its initial Proposal for the Information Society Directive on 10 December 1997, and an amended proposal on 21 May 1999. The Common Position followed on 28 September 2000, and the Information Society Directive was finally adopted on 22 May 2001.4 Member States were given until 22 December 2002 to implement it into national law, but only Greece and Denmark managed to meet the implementation deadline. Most Member States transposed the obligations of the Directive in the course of 2003 and 2004, while large Member States such as Spain and France needed considerably more time. With the adoption on 1st August 2006 of the Loi 2006-961 relative au droit d'auteur et aux droits voisins dans la société de l'information, 1 OJ 2001 L 167 of 22.6.2001, p. 10. 2 WIPO Copyright Treaty (WCT) and WIPO Performers and Phonograms Treaty (WPPT) both signed at the WIPO Diplomatic Conference, Geneva, 20 December 1996. 3 European Commission, Green Paper on Copyright and Related Rights in the Information Society, Brussels, 19.07.1995, COM(95) 382 final. 4 Walter in M.M. Walter (ed.), Europäisches Urheberrecht, Vienna, Springer Verlag, 2001, 1009-1113; S. Bechtold, “Comment on Directive 2001/29/EC”, in T. Dreier P.B. Hugenholtz (ed.), Concise on European Copyright Law, Alphen aan den Rijn, Kluwer Law International, 2006, § 1. INFORMATION SOCIETY DIRECTIVE France was indeed the last Member State to implement the directive,5 thereby finally paving the way for the ratification by the European Union and its Member States of the WIPO Treaties. In light of the fact that the process of implementation was completed only recently, an evaluation exercise may seem quite premature. However, article 12 of the Directive expressly instructs the European Commission to submit a review report to the European Parliament no later than forty-two months after the date of entry into force of this Directive, i.e. by November 2004. In particular, article 12 calls for the examination of the application of articles 5, 6 and 8 of the Directive in the light of the development of the digital market. Another reason for an early evaluation of the Directive lies in the dynamic nature of the ‘information society’ (i.e. the Internet) itself. The Directive was based initially on policies set out in the Commission’s Green Paper of 1995. In other words, the Directive was designed to respond to the legal challenges posed by the information society as they were perceived in the mid-1990’s – over ten years ago. Since 1995, and even after the final adoption of the Information Society Directive in 2001, numerous important technological and economical developments have changed the landscape of the information society. The new millennium has seen the spectacular rise, both in popularity and in performance, of online business models offering vast amounts of copyrighted content (music, video, software, images and even books). The roll-out of such online content services, as iTunes, and the rapid deployment of Digital Rights Management systems, that existed largely in theory when the Directive was adopted, has resulted in a real, rapidly growing and vibrant market place for digital content services in Europe and elsewhere. To what extent have the provisions of the Directive that were specifically aimed at promoting these new services, notably articles 5 and 6, been conducive to this development? In sum, the Lisbon agenda, the Directive’s built-in review process and the dynamics of the information society, all call for an unbiased and critical evaluation of the Directive. This final report is divided in two parts. Part I provides an early assessment of the impact of Directive 2001/29/EC on the development of online business models, applying a methodology that will be explained in section 1.1. Since the Directive has been transposed, in major parts of the
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