Select Committee on European Scrutiny Eighth Report



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.

Legal base: Articles 47(2), 55 and 95 EC; co-decision; qualified majority voting
Department: 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
Committee's assessment: Politically important
Committee's decision: 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).

    Amendment 3

    "this new recital (52a) clarifies the intended scope of the fourth subparagraph[69] 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.

    Amendment 5

    "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 ends'.

    Amendments 6-9

    "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.

    Amendment 10

    "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 artistic works.

    Amendment 14

    "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 any difficulties'.

    Amendment 15

    "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 legislation[70] implementing 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 further:

    "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 Position extensively.

    "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, he adds:

    "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 during implementation."


  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 result.

  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

70  S.I., 1992, No. 3233; S.I., 1995, No. 3297; S.I., 1996, No. 2967 and S.I., 1997, No. 3032.


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Prepared 28 March 2001