After the InfoSoc Directive… the Long March to ‘harmonisation’

Barbara StrattonSenior Copyright Adviser

CILIP: Chartered Institute of Library and Information Professionals

Secretary, LACA: the Libraries and Archives Copyright Alliance, UK

EBLIDA-CEG seminar, Vilnius 26th October 2006

Meet the Commissioners DG Internal Market and Services

Meet the CommissionersDG Information Society and Media

DG Internal Market and Services

MARKT.D Knowledge-based economy Director Jacqueline Minor Adviser  Luis Gonzalez Vaque  

Markt.D.1 Copyright and Knowledge-based Economy Head of Unit Tilman Lueder Policy Officers Mr   D. Baervoets

Mr   L. MajerMs   J. JugMr   Leonardo Cervera NavasMs   V. GuennelonMs   D. Muffat-jeandetMs   Julie SamnaddaMr   J. Van Der VeerMs   Barbara Norcross-Amilhat

http://europa.eu.int/comm/dgs/internal_market/index_en.htm

DG Internal Market and Services

D.1 Copyright and Knowledge-based Economy

Tilman Lueder, Head of Unit

Copyright at the crossroads?

Tilman Lueder said last year13th Annual Conference on IP Law & Policy, Fordham University, New York, April 2005

“the department is taking the knowledge economy as its principle focus and aiming to make services, including services supplied across EU borders, the main driver for economic growth and future prosperity.”

“All of our initiatives will be subjected to a rigorous cost/benefit analysis…all Commission proposals will face an Impact Assessment (“IA”) weighing the cost to business before they are sent to the EU Parliament and the Council of ministers for approval. No initiative that fails this screening test will fly: The gains must exceed the cost of compliance. Our aim is to increase the efficiency of commercial exploitation of copyright - not to introduce yet another layer of red tape.”

Copyright at the crossroads?

Tilman also said…Single Market News 37, May 2005 http://europa.eu.int/comm/internal_market/smn/smn37/docs/special-feature_en.pdf

“In the past we have been concerned with substantive aspects of copyright, such as the scope of these rights, the introduction of related rights and the length of protection. We’ve done much to harmonise these rules across Europe but we have found that this has not brought about efficiency gains in how copyright is commercially exploited.”“Harmonisation at the rule-making level cannot overcome the fact that copyright is still administered on a national basis – and this has precluded in some cases the economies of scale usually associated with the internal market.""We also need to foster legitimate online business models and aim to avoid traditional copyright remuneration models, such as levies on blank cassettes, CDs or even computer disks becoming an obstacle to the 'take-up' of legitimate digital remuneration models."

DG Markt D work programme

Agenda is to recast copyright to make it ‘fit’ for the online environment http://europa.eu.int/comm/internal_market/copyright/docs/levy_reform/roadmap_82_83_en.pdf

Is seeking to take an evidence-based approach to the evaluation of the Acquis and specific Directives.

DG Markt D work programmeCollective Rights Management

2004 Consultation attracted 80 responses The problem perceived by the Commission -

Rights managed by national collecting societies could lead to content being subject to clearance 25 times.

National collecting societies a 19th century model inappropriate for internet age.

No cross-border online licences available. Librarians told the Commission to address the issues of lack of

transparency, poor management, and failures in royalty distribution

Commission Recommendation on Collective Cross-border Management of Copyright and Related Rights for Legitimate Online Music Services 18.10.2005 Allows rightholders the option of authorising one single collecting

society to license and monitor all the different uses made of their works across the entire EU.

How are users going to know where to clear online music rights?

DG Markt D work programme Review of Database Directive 1996

November 2004: ECJ judgments on racing fixtures cases Scope of sui generis protection does not include creation of the

underlying data Sui generis = “substantial investment”

October 2005: Creative Economy Conference, London – Commission indicates withdrawal of the Directive is a serious

option – “Shock! Horror!” from rightholders.

December 2005: Commission’s 1st Evaluation of the Directive. Consultation closed 31st March 2006. First evidence-based, rather than faith-based evaluation of an IPR.

Report acknowledges that granting increased rights to db makers had not achieved the policy aims of increasing EU competitiveness against the US. US db industry dominant without the protection.

Four Options: withdraw Directive, repeal sui generis right, amend sui generis right, do nothing.

DG Markt D work programme Review of Database Directive 1996

Libraries are producers of non-original dbs protected only by sui generis right

Problems because of different traditions regarding ‘originality’ UK & Ireland - ‘sweat of the brow’; rest of Europe - ‘intellectual

creativity’

Currently EU ‘originality’ test for dbs is only ‘intellectual creativity’

Impact if Directive withdrawn In UK & Ireland all dbs would revert to copyright protection as

compilations, but

In rest of Europe there would be no protection for non-original dbs

Cross-border collaborative projects could be affected – e.g.. European Digital Library – harmonisation needed

DG Markt D work programme Review of Database Directive 1996

Library lobby For amendment of sui generis right to address its

complexitiesTo amend the the renewable 15 year term of protection

to eliminate perpetual protection.Risk of differing opinions along national lines re

withdrawal of the Directive or repeal of sui generis right

Stakeholder consultation revealed a general lack of enthusiasm for the Directive’s withdrawal Result = no action by the Commission

DG Markt D work programme Review of Acquis Communautaire 1

10+ years of the copyright Acquis = 11 Directives A fast moving technical environment …time to assess…codification

of Community law October 2004: Consultation on the Acquis Communautaire in

copyright & related rights - 139 responses Update the legislative framework in the field of copyright and related

rights - increase its consistency and simplify the provisions 7 December 2005: EC tender for a study into the Acquis

Study on the Acquis to include Reform of copyright levies on equipment & media used for private

copying (NB no levy system in UK & Ireland). Due late 2006 Review of the Term Directive 1993

In particular, term for sound recordings - in the face of industry pressure to extend the term for sound recordings and performances in them.

DG Internal Market is to provide an impact assessment at the end 2006.

Review of ownership of co-written and musical works

DG Markt D work programme Review of Acquis Communautaire 2

Review of the Information Society Directive 2001/29/EC also intended

Originally was to look only at the Directive’s implementation.

Now to be an evaluation review to establish whether or not has it achieved its policy objectives. This is an important change.

Review will includeThe contribution of copyright to knowledge economy

The role of consumers

Difficulties that arise for all the stakeholders

The Member States’ transposition of the exceptions & limitations into national legislation

A look at technical protection measures (TPMs)

DG Markt D work programme Current infringement proceedings

PLR (Public Lending Right)Spain, Ireland, Portugal, Italy, Luxembourg being taken

before the ECJ by the Commission for “incorrect application of the public lending right”

Basically these countries had exempted public libraries from PLR. Ireland is in the (slow) process of compliance by introducing a PLR scheme for public libraries.

InfoSoc Directive implementationFrance, Finland, Spain and the Czech Republic for

“non-implementation”…although the French have been in the process for some time and have now implemented in 2006 amid much controversy

DG Justice & Home AffairsIPRED 2

Amended Proposal for a Directive … on Criminal Measures Aimed at Ensuring the Enforcement of Intellectual Property Rights (COM(2006) 168 final 2005/0127 (COD) 26.4.2006) http://eur-lex.europa.eu/LexUriServ/site/en/com/2006/com2006_0168en01.pdf Article 1 “…These measures shall apply to intellectual property rights provided for in Community legislation and/or national legislation in the Member States.” Article 3 “Member States shall ensure that all intentional infringements of an intellectual property right on a commercial scale, and attempting, aiding or abetting and inciting such infringements, are treated as criminal offences.

Scope of criminal sanctions for infringement extended beyond that of TRIPS Art. 61 to all IPRs covered by Community law

No financial benefit or profit required – ‘commercial scale’ is much wider and easier to achieve e.g. rightholders claim individual P2P file sharing is on a ‘commercial scale’ .

Could librarians risk accusation of aiding and abetting? Unlikely if unintentional, but Member States might take different approaches.

DG Information Societyi2010 Digital Libraries 1

European Digital Library (EDL) Flagship project within Commission’s i2010 strategy to boost digital

economy Aims at making Europe's diverse cultural and scientific heritage

(books, films, maps, photographs, music, etc.) easier and more interesting to use online for work, leisure and/or study.

Builds on Europe's rich heritage combining multicultural and multilingual environments with technological advances and new business models.

EDL High Level Group established February 2006 Brings together major stakeholders from industry and cultural

institutions. Includes a number of national librarians and archivists.

First tasks are to tackle the barriers posed by copyright and encourage public-private collaboration for digitisation.

DG Information Societyi2010 Digital Libraries 2

Commission Recommendation to Member States (24/08/06) Digitisation of content – large-scale, plus using already digitised

content Online accessibility

By seeking concrete solutions on copyright issues, e.g. mechanisms to deal with "orphan" works and works that are out of print.

Digital Preservation Establish national strategies and plans for the long-term preservation of,

and access to, digital material. Adapt legislation, where necessary

To allow multiple copying and migration for preservation purposesTo facilitate web-preservation and deposit of digital material for

preservation purposes.

http://europa.eu.int/information_society/activities/digital_libraries/index_en.htm

Audiovisual & Media Policies Content Online 1

Public Consultation on Content Online (Closed 13/10/06)On ‘ways to stimulate the growth of a true EU single

market for online cross-border delivery of digital content, such as films, music and games’.

Addressed broader issues such as intellectual property rights management in the digital age.

The creation of an open and competitive single market for online content is one of the key aims of the i2010 Initiative.

http://ec.europa.eu/comm/avpolicy/other_actions/content_online/index_en.htm#consultation#consultation

Audiovisual & Media Policies Content Online 2

EBLIDA Response to Content Online

‘Bottom line’ wasAll the available exceptions to copyright should be made

to operate in all Member States

The absolute legal protection afforded to technological protection measures should be mitigated so that they do not necessarily obstruct the limited copying permitted by law through the exceptions

It should be established clearly in law that any contractual term purporting to nullify a statutory exception is void.

EBLIDA Responses/Policy Positions 2003-2005

On Digital Rights Management Systems, February 2003 On the Proposal for a Directive….on measures and procedures to

ensure the enforcement of intellectual property rights (05.12.2003) (aka IPRED 1)

On the Directive 2004/48/EC …on the enforcement of intellectual property right 29.04.2004 (aka IPRED 1)

on the infringement procedures over Public Lending Right, March 2004 (see also Report from the Commission…on the public lending right in

the European Union (16.09.2002)) DG Internal Market’s consultation…on the Management of Copyright and

Related Rights in the Internal Market, June 2004 DG Internal Market’s consultation on the Final Report of the High Level

Group on Digital Rights Management (March-July 2004), September 2004

EBLIDA Responses/Policy Positions 2003-2005

DG Internal Market’s Staff Working Paper…Review of the EC Legal Framework in the Field of Copyright and Related Rights (19.07.2004), October 2004

The Commission Working Party 29 Working Document 104 on Data Protection Issues Related to Intellectual Property Rights, March 2005  

DG Internal Market’s Staff Working Document Study on a Community Initiative on the Cross-border Collective Management of Copyright, July 2005 (this output from the 2004 consultation on the Management of Copyright was entirely about online music)

Resulted in the Commission Recommendation on Collective Cross-border Management of Copyright and Related Rights for Legitimate Online Music Services 18.10.2005

EBLIDA Responses/Policy Positions 2006

To DG Information Society’s “Questions for Online Consultation”, annex to the Communication from the Commission i2010 Digital Libraries, January 2006

To DG Internal Market’s Working Paper on a First Evaluation of Directive 96/9/EC on the Legal Protection of Databases, March 2006

On DG Research’s Study on the economic and technical evolution of the scientific publication market in Europe, May 2006

To the Commission's White Paper on a Communication Policy, May 2006

To the DG Internal Market’s Stakeholder Consultation on Copyright Levies in a Converging World, July 2006

On Chapters 1 & 2 of the Commission's Green Paper on the European Transparency Initiative, August 2006

To the Commission's (Audiovisual & Media Policies) Public Consultation on Content Online in the Single Market October 2006

Advocacy and lobbying 1

The Review of the Acquis and the European Digital Library present great opportunities for us to influence for change The EC will experience first hand from the Digital Library project the

full range of the problems libraries and archives have been coping with in copyright and licensing and the digital environment – from TPMs to orphan works.

DG Internal Market and Services is advising DG Information Society on the Digital Libraries project.

Will the InfoSoc ‘freaks’ win out against the Internal Market ‘ayatollahs’?

At the same time there are pressures to rebalance copyright and guarantee Access to Knowledge within the WIPO Development Agenda process

WIPO SCCR and PCDA meeting pages www.wipo.int

A2K list archives http://lists.essential.org/pipermail/a2k/

Advocacy and lobbying 2

Libraries and archives Should seek recognition by everyone as ‘trusted

intermediaries’ in the digital environment We need to marshall evidence to support our case - faith

is not enoughNeed to lobby effectively at home through associations,

alliances and coalitions of like-minded civil society organisations e.g. libraries, archives, consumers, associations for blind people, dyslexics and others with learning difficulties

And lobby in Europe as members of EBLIDA Otherwise

Copyright ‘fit’ for the online environment will not benefit civil society, nor the creative and knowledge economies

Information sources for Library & User Copyright Advocacy 1

Adelphi Charter http://www.adelphicharter.org/ American Library Association OITC http://www.ala.org/ala/washoff/

WOissues/copyrightb/copyright.htm

Australian Digital Alliance http://www.digital.org.au/

Australian Libraries Copyright Committee http://www.digital.org.au/alcc/

Australian Library and Information Association http://alia.org.au/advocacy/copyright/

BEUC (European Consumer Organisation) - Consumers Digital Rights page http://www.consumersdigitalrights.org/cms/index_en.php

Center for the Study of the Public Domain, Duke University Law School http://www.law.duke.edu/cspd/ - James Boyle Home Page http://james-boyle.com/

CPTech (Consumer Project on Technology) http://www.cptech.org/ - Access to Knowledge page www.cptech.org/a2k

Information sources for Library & User Copyright Advocacy 2

DG Internal Market and Services Copyright and Neighbouring Rights http://europa.eu.int/comm/internal_market/copyright/index_en.htm

DG Information Society i2010 Digital Libraries initiative http://europa.eu.int/information_society/activities/digital_libraries/index_en.htm

EBLIDA www.eblida.org EBLIDA Response/position papers and linked Commission papers at http://www.eblida.org/position/index.htm

EFF (Electronic Frontier Foundation) www.eff.org eIFL: Electronic Information for Libraries

http://www.eifl.net/services/services_ip.html European Digital Rights - EDRI-gram Newsletter www.edri.org Intellectual Property Watch www.ip-watch.org (independent news service

reporting on international IP policy) IP Justice www.ipjustice.org Libraries & Archives Copyright Alliance, UK www.cilip.org.uk/laca Open Rights Group, UK http://www.openrightsgroup.org/