HARMONISATION OF COPYRIGHT
Commission's Opinion on the European Parliament's amendments to the Council's Common Position on the draft Directive on the harmonisation of certain aspects of copyright and related rights in the information society.
||Articles 47(2), 55 and 95 EC; co-decision; qualified majority voting
||Trade and Industry|
|Basis of consideration:
||EM of 6 March 2001
|Previous Committee Report:
||None; but see (21211) : HC 28-vii (2000-01), paragraph 14 (28 February 2001)
|To be discussed in Council:
||No date set |
||Cleared; but further information requested
29.1 The draft Directive seeks to harmonise
copyright and related rights in certain key areas, primarily to
deal with the challenge of digital technology. It will harmonise
the core rights relevant to uses of copyright material in the
information society and e-commerce, namely the rights of
reproduction (copying) and communication (electronic transmission,
including digital broadcasting and "on-demand" services)
as well as exceptions to these rights, such as the matter of copies
made for private purposes. It also provides protection for technological
measures used to safeguard rights or identify material, such as
copy protection systems or digital watermarks.
29.2 On 28 February we considered a letter
from the Parliamentary Under-Secretary of State for Consumers
and Corporate Affairs at the Department of Trade and Industry
(Dr Kim Howells) in which he told us that the European Parliament
(EP) had approved nine amendments to the Common Position at its
plenary session on 14 February. While the Government welcomed
the fact that the EP had decided not to seek to amend the Directive
extensively, the Minister said that it would need to consider
these amendments carefully with the other Member States and the
Commission. Its preliminary view was that it would need to look
particularly closely at Amendments 5 to 9 of the Directive, which
appeared to limit further the flexibility for Member States in
the exceptions provisions in Article 5 of the Directive.
The Commission document
29.3 The Commission has now issued its opinion.
The Minister summarises these as follows:
"the Commission accepts
all nine of the Parliament's amendments, which are detailed below
(the numbering is that in the text adopted by the European
Parliament at Second Reading).
"this new recital (52a) clarifies the intended
scope of the fourth subparagraph
of Article 6.4, by stating explicitly that this limitation only
applies in the case of material made available to the public on
agreed contractual terms by 'interactive on-demand services'.
The new recital also makes clear that other forms of online use
of material remain subject to the safeguards for Member States
in Article 6.4.
"changes the Common Position wording of Article
5.2b (the so-called 'private copying' exception) to refer to reproductions
made 'by a natural person for private use and for ends that
are neither directly nor indirectly commercial', replacing
'for the private use of a natural person and for non-commercial
"changes the wording of Articles 5.3a, 5.3c,
5.3d and 5.3f (exceptions in the fields of education and scientific
research, the press and reporting, criticism and review, and political
speeches respectively) as regards acknowledgement of the source
of the work in question. Specifically, references in the Common
Position to acknowledging the source 'whenever possible'
become 'unless this proves impossible' or similar.
"adds the proviso 'excluding any other commercial
use' to Article 5.3j in the Common Position, which is an exception
covering uses in advertising the public exhibition or sale of
"adds a new task for the proposed contact committee
in Article 12.4, namely 'to examine the impact of the Directive
on the functioning of the international market, and to highlight
"reduces to '18 months' the period of
'two years' allowed in Article 13.1 of the Common Position
for Member States' implementation of the Directive."
Impact on UK law
29.4 The Minister comments as follows:
"The relevant UK
legislation is the Copyright, Designs and Patents Act 1988, as
amended by the Broadcasting Acts of 1990 and 1996 and by secondary
earlier Directives in the copyright and related rights field.
"As previous Explanatory Memoranda made clear,
UK law already provides a sound basis to meet the challenges of
new technology. The main adjustments that would be necessary to
bring UK law clearly into line with the Directive concern introduction
of performers' exclusive rights to control "on-demand"
transmissions of recordings of their performances (as required
by Article 3.2), amendments that appear necessary in order to
comply with the regime of compulsory and permitted exceptions
in Article 5, amendments to cater for the fact that protection
of technological systems in Article 6 extends to technological
measures used to prevent infringement of rights in general, and
introduction of provisions for the protection of electronic rights
management information set out in Article 7.
"The effect of the European Parliament's amendments
on the impact of the Directive as a whole is small. Amendments
3, 10, 14 and 15 deal with points of clarification or procedure.
In so far as the intended effect of the changes in Amendments
5 to 9 can be determined, the only possible impact can be to reduce
somewhat the flexibility for Member States in the specific exception
provisions concerned, compared to the Common Position text. However,
in the view of the Commission, Amendments 5 to 9 'make no material
difference to the scope of the Common Position'. Further clarification
is being sought via discussions in Council."
The Government's view
29.5 The Minister says that the UK needs
to ensure that copyright protection in the EU is at least as good
as that provided under UK legislation. The Government wants the
Directive agreed as soon as possible so as to enable the Community
and the Member States to ratify the 1996 World Intellectual Property
Organisation (WIPO) treaties in the copyright field, by implementing
a number of obligations arising from these treaties. He comments
"While the Government
has always supported the broad thrust of the draft Directive,
we have been concerned by the too prescriptive nature of the regime
proposed for exceptions to the basic rights in both the original
and amended Commission proposals. We have been actively seeking
with like-minded Member States a fairer balance between all the
interests involved. We believe that the Common Position represents
a workable compromise, and we therefore welcome the fact that
the [European] Parliament has decided not to amend the Common
"The key gains regarding the necessary balance
of the Common Position do not seem to be compromised to any significant
degree by the [European] Parliament's amendments, although the
practical effect of some of the changes has yet to be determined
fully (Amendments 5 to 9). The Government is particularly keen
to clarify the precise significance of the change to Article 5.2b
(Amendment 5) and agree an acceptable interpretation which will
allow us to maintain the key elements of current UK practice.
Early indications from other Member States show some support for
our view that problems with Amendments 6 to 9 are largely a matter
of drafting and therefore resolvable. However, Amendment 15 (reducing
the time available for implementation) seems to pose serious problems
for some other countries. There is a clear wish from all concerned
to avoid a formal Conciliation procedure".
29.6 The Minister says that a fairly general
view has developed amongst interested bodies that the text of
the Common Position represents a workable compromise. However,
"While most users and
intermediaries were more or less content with the balance of the
Common Position and made this known to Government, some interests,
especially right holder groups, lobbied the European Parliament
strongly for further moves in their direction. Despite the limited
changes to the Common Position actually adopted by the Parliament,
these same interests are now indicating that they can accept the
Common Position as amended. The Department has assured all interested
parties that the consultation process will continue in earnest
29.7 The European Parliament's amendments
are being considered by the Council, in the light of the Commission's
opinion. The Minister says that all concerned are hopeful that
formal Conciliation can be avoided and the Directive finally adopted
in the near future.
29.8 The Minister's description of the
European Parliament's amendments as not having influenced to any
great degree "the broadly neutral effect of the Directive
between the various interests, achieved by the Common Position"
is reassuring, as is the indication that the right-holder groups
can accept the Common Position as amended. We note that the Government
is seeking clarification of the amended Article 5.2.b on reproductions
made for private use and we ask the Minister to inform us of the
29.9 We, too, hope that the Directive
can be adopted in the near future, and we clear this document.
69 A limitation on the first and second subparagraphs
of Article 6.4, which are safeguards enabling Member States to
act to ensure users can benefit from exceptions when right holders
use technical measures to protect work. Back
1992, No. 3233; S.I., 1995, No. 3297; S.I., 1996, No. 2967 and
S.I., 1997, No. 3032.