The Copyright and Information Society Directive 2001
2001/29
is a directive in

European Union law European Union law is a system of Supranational union, supranational Law, laws operating within the 27 member states of the European Union (EU). It has grown over time since the 1952 founding of the European Coal and Steel Community, to promote ...

that was enacted to implement the

WIPO Copyright Treaty The World Intellectual Property Organization Copyright Treaty (WIPO Copyright Treaty or WCT) is an international treaty on copyright law adopted by the member states of the World Intellectual Property Organization (WIPO) in 1996. It provides ...

and to harmonise aspects of copyright law across Europe, such as

copyright exceptions Limitations and exceptions to copyright are provisions, in local copyright law or the Berne Convention, which allow for copyrighted works to be used without a license from the copyright owner. Limitations and exceptions to copyright relate to a ...

. The directive was first enacted in 2001 under the

internal market The European single market, also known as the European internal market or the European common market, is the single market comprising mainly the member states of the European Union (EU). With certain exceptions, it also comprises Iceland, ...

provisions of the

Treaty of Rome The Treaty of Rome, or EEC Treaty (officially the Treaty establishing the European Economic Community), brought about the creation of the European Economic Community (EEC), the best known of the European Communities (EC). The treaty was signe ...

. The draft directive was subject to unprecedented lobbying and was considered a success for Europe's copyright laws. The 2001 directive gave EU Member States significant freedom in certain aspects of transposition. Member States had until 22 December 2002 to transpose the directive into their national laws, although only Greece and Denmark met the deadline.

Provisions

Rights

Articles 2–4 contain definitions of the exclusive rights granted to under

copyright A copyright is a type of intellectual property that gives its owner the exclusive legal right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, ...

and

related rights In copyright law, related rights (or neighbouring rights) are the rights of a creative work not connected with the work's actual author. It is used in opposition to the term "authors' rights". ''Neighbouring rights'' is a more literal translation ...

. They distinguish the "reproduction right" (Article 2) from the right of "communication to the public" or "making available to the public" (Article 3): the latter is specifically intended to cover publication and transmission on the internet. The two names for the right derive from the

and the

WIPO Performances and Phonograms Treaty The WIPO Performances and Phonograms Treaty (or WPPT) is an international treaty adopted in Geneva on 20 December 1996. It came into effect on 20 May 2002. The treaty deals with the rights of two kinds of beneficiaries, particularly in the digital ...

(Arts. 8 & 10 respectively). The related right for authors to authorise or prohibit any form of distribution to the public by sale or otherwise is provided for in Article 4 ( exhaustion rights).

Exceptions and limitations

Article 5 lists the

which Member States may apply to copyright and related rights. The restrictive nature of the list was one source of controversy over the directive: in principle, Member States may ''only'' apply exceptions which are on the agreed list, although other exceptions which were already in national laws on 2001-06-22 may remain in force rticle 5(3)(o) The Copyright Directive makes only one exception obligatory: transient or incidental copying as part of a network transmission or legal use. Hence

internet service provider An Internet service provider (ISP) is an organization that provides a myriad of services related to accessing, using, managing, or participating in the Internet. ISPs can be organized in various forms, such as commercial, community-owned, no ...

s are not liable for the data they transmit, even if it infringes copyright. The other limitations are optional, with Member States choosing which they give effect to in national laws. Article 5(2) allows Member States to establish copyright exceptions to the Article 2 reproduction right in cases of: * photographic reproductions on paper or any similar medium of works (excluding sheet music) provided that the rightholders receives fair compensation, * reproductions on any medium made by a natural person for private use which is non-commercial provided that the rightholders receives fair compensation, * reproduction made by libraries, educational establishments, museums or archives, which are non-commercial * archival reproductions of broadcasts, * reproductions of broadcasts made by "social institutions pursuing non-commercial purposes, such as hospitals or prisons" provided that the rightholders receives fair compensation. Article 5(3) allows Member States to establish copyright exceptions to the Article 2 reproduction right and the Article 3 right of communication to the public in cases of: * illustration for teaching or scientific research, provided the source, including the author's name, is acknowledged, * uses for the benefit of people with a

disability Disability is the experience of any condition that makes it more difficult for a person to do certain activities or have equitable access within a given society. Disabilities may be Cognitive disability, cognitive, Developmental disability, d ...

, * current event reporting, provided the source, including the author's name, is acknowledged, * quotations for purposes such as criticism or review, provided the source, including the author's name, is acknowledged, * use necessary for the purposes of "public security" or to the proper performance or reporting of "administrative, parliamentary or judicial proceedings", * use of political speeches and extracts of public lectures or similar works, provided the source, including the author's name, is acknowledged, * use during religious celebrations or official celebrations "organised by a public authority", * use of works such as architecture or sculpture located permanently in public places, * incidental inclusion of a work in other material, * the advertising the public exhibition or sale of artistic works * caricature, parody or pastiche, * for demonstration or repair of equipment, * use of an artistic work, drawing or plan of a building for the purposes of reconstruction, * for non-commercial research or private study According to Article 5(5) copyright exceptions may only be "applied in certain special cases which do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder", therefore the directive confirms the

Berne three-step test In international law, the Berne three-step test is a clause that is included in several international treaties on intellectual property. Signatories of those treaties agree to standardize possible limitations and exceptions to exclusive rights u ...

Technological protection measures

Article 6 of the Copyright Directive requires that Member States must provide "adequate legal protection" against the intentional circumvention of "effective technological measures" designed to prevent or restrict acts of copying not authorised by the rightholders of any copyright, related right or the sui generis right in databases (

preamble A preamble () is an introductory and expressionary statement in a document that explains the document's purpose and underlying philosophy. When applied to the opening paragraphs of a statute, it may recite historical facts pertinent to the su ...

paragraph 47). Member States must also provide "adequate legal protection" against the manufacture, import, distribution, sale, rental, advertisement, or possession "for commercial purposes of devices, products or components or the provision of services which": *are promoted, advertised or marketed for the purpose of circumvention of, or *have only a limited commercially significant purpose or use other than to circumvent, or *are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective technological measures. In the absence of rightsholders taking voluntary measures the Directive provides that Member States must ensure that technological measures do not prevent uses permitted under Article 5 on

, see Article 6(4). Article 7 requires that Member States must provide "adequate legal protection" against the removal of rights management information

metadata Metadata (or metainformation) is "data that provides information about other data", but not the content of the data itself, such as the text of a message or the image itself. There are many distinct types of metadata, including: * Descriptive ...

. Unlike Section 1201 of the

Digital Millennium Copyright Act The Digital Millennium Copyright Act (DMCA) is a 1998 United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or ...

, which only prohibits circumvention of access control measures, the Copyright Directive also prohibits circumvention of

copy protection Copy protection, also known as content protection, copy prevention and copy restriction, is any measure to enforce copyright by preventing the reproduction of software, films, music, and other media. Copy protection is most commonly found on vid ...

measures, making it potentially more restrictive. In both the DMCA and the Copyright Directive, production, distribution etc. of equipment used to circumvent both access and copy-protection is prohibited. Under the DMCA, potential users who want to avail themselves of an alleged

fair use Fair use is a Legal doctrine, doctrine in United States law that permits limited use of copyrighted material without having to first acquire permission from the copyright holder. Fair use is one of the limitations to copyright intended to bal ...

privilege to crack copy protection (which is not prohibited) would have to do it themselves since no equipment would lawfully be marketed for that purpose. Under the Copyright Directive, this possibility would not be available since circumvention of copy protection is illegal.

Implementation by member states

Member States had until 22 December 2002 to implement the Copyright Directive into their national laws. However, only Greece and Denmark met the deadline, while Italy, Austria, Germany and the UK implemented the directive in 2003. The remaining eight Member States (Belgium, Spain, France, Luxembourg, The Netherlands, Portugal, Finland and Sweden) were referred to the

European Court of Justice The European Court of Justice (ECJ), officially the Court of Justice (), is the supreme court of the European Union in matters of European Union law. As a part of the Court of Justice of the European Union, it is tasked with interpreting ...

for non-implementation. In 2004 Finland, the UK (with regards to

Gibraltar Gibraltar ( , ) is a British Overseas Territories, British Overseas Territory and British overseas cities, city located at the southern tip of the Iberian Peninsula, on the Bay of Gibraltar, near the exit of the Mediterranean Sea into the A ...

), Belgium and Sweden were held responsible for non-implementation. National implementation measures include: *

Czech Republic The Czech Republic, also known as Czechia, and historically known as Bohemia, is a landlocked country in Central Europe. The country is bordered by Austria to the south, Germany to the west, Poland to the northeast, and Slovakia to the south ...

Finland Finland, officially the Republic of Finland, is a Nordic country in Northern Europe. It borders Sweden to the northwest, Norway to the north, and Russia to the east, with the Gulf of Bothnia to the west and the Gulf of Finland to the south, ...

: 2005 amendment to the Finnish Copyright Act and Penal Code * France: , better known as "DADVSI" * United Kingdom: Copyright and Related Rights Regulations 2003

2019 revision and expansion

In 2016, leaked documents revealed that two new provisions were under consideration. The first, aimed at social media companies, sought to make automated screening for copyrighted content mandatory for all cases in which a user can upload data. The second proposed that news publishers should benefit financially when links to their articles are posted on a commercial platform. Responding to criticism, Axel Voss admitted that the law was "maybe not the best idea" but went on to support its passage and draft some of the language being used to amend Article 11. The update has been widely derided as a link tax. Its critics include German former MEP

Felix Reda Felix Reda (formerly Julia Reda; born 30 November 1986) is a German researcher, politician, and former Member of the European Parliament (MEP) from Germany. He was a member of the Pirate Party Germany until 27 March 2019, part of The Greens–E ...

, Internet company

Mozilla Mozilla is a free software community founded in 1998 by members of Netscape. The Mozilla community uses, develops, publishes and supports Mozilla products, thereby promoting free software and open standards. The community is supported institution ...

and copyright reform activists associated with the

Creative Commons Creative Commons (CC) is an American non-profit organization and international network devoted to educational access and expanding the range of creative works available for others to build upon legally and to share. The organization has release ...

. Some discussion has concerned the inability for news agencies to opt out of the payment system and the claim that ancillary rights for news snippets contradicts the Berne convention.

Notes

References

External links

Text of the Directive (as corrected)
by FSFE
EUCD.info
{{Intellectual property laws of the European Union Copyright law of the European Union European Union directives Copyright legislation 2001 in law 2001 in the European Union