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European commission green paper on copyright [(1) COM (ss) 172]
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EUROPEAN COMMISSION GREEN PAPER 0N COPYRIGHT .......!(1) COM ( 8 8 ) 1 7 2 .... .
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The Green Paper on Copyright adopted by the Commission discusses the main problem areas in relation to operating an internal market without frontiers and explores possible solutions. It takes full account of the urgent need to adapt copyright legislation to ongoing technological developments. A key aspect is the need to deal with commercial piracy of goods protected by copyright both inside and outside the Community. Presenting the Green paper, Lord Cockfield said: "'Copyright legislation is undergoing a rapid and sometimes difficult transition period as we struggle to adapt concepts devised in the age of the messenger on horseback to the age of electronic transmission. Advances in technology are breaking down the traditional barriers between litera~ scientific, musical, and artistic works, both in terms of the products themselves and their exploitation and the necessary legal framework for their protection. The challenge before us is to devise a new copyright framework which will accommodate and maximise these advances in technology.'" Indeed, differences in national intellectual property laws have a direct, often hindering impact on Intra-Community trade and on the ability of enterprises to treat the common market as a single environment for their economic activities. This situation is further complicated by the need to adapt existing legislation to technical change in a number of areas including the digital recording, computer software, data bases, microcircuits and biotechnology. In order to create a firm legal foundation for investment in new techniques, legislation must be adapted in a convergent manner so that these changes will not create further barriers in an already imperfect intellectual property market. The Green Paper is a discussion document intended primarily to serve as a basis for extensive consultations of interested circles on a number of copyright issues. In the light of the comments and submissions which the Commission hopes to receive in the next few months, legislative initiatives will be proposed as
appropriate. Any discussion of copyright and how to protect it must encompass not only the legitimate rights of the author, but also the aspirations of citizens and industry for making use of the ideas and knowledge covered by intellectual property rights. This is particularly relevant in high technology sectors where in the wake of the 1992 objective the Community must strengthen its research and development capacity.
Public interest The public interest is best served by encouraging technical progress, even where it means that original works can be reproduced, both cheaply and easily. It is essential to foster a legal environment which favours creativity, innovation, and competition. In the context of completing the internal market one of the relevant effects of copyright is inevitably to limit the freedom of third parties to compete by marketing similar products. In the more traditional domains of copyright applying to literary, musical and dramatic works, this has not posed a significant problem since independent works of the same genre can in law and in practice still compete with each other quite fairly. In areas which have developed more recently, however, the restrictive effects of copyright protection on legitimate competition can become excessive, for example, in respect of purely functional industrial designs and computer programs. In such cases, the exercise of copyright protection can in practice amount to a genuine monopoly, unduly broad in scope and lengthy in duration. Priority issues The Green Paper deals with a limited number of priority issues where differences between national legislations are likely to cause difficulties for the functioning of the internal market and where the existing framework of copyright legislation is being called into question mainly as a consequence of advances in technology over the last decade. The most important issues which might give rise to problems
SEP[
-
OCI
"- TIlE COMPUTER LAW AND SECURITY REPORT
when ensuring free circulation in the internal market of goods and services covered by copyright legislation are commercial piracy, private copying and distribution. I. Commercial piracy Commercial copyright piracy has emerged as a serious problem for industry and creative artists depending upon due respect of copyright for their living. The significance of piracy varies from sector to sector and with the passage of time. For example, although video recording is a relatively recent phenomenon, illegitimate video recordings on the market both within and outside the Community now sometimes outnumber those legitimately produced. The piracy problem has become an issue of great concern to the sound recording industry which has made great efforts and taken numerous initiatives to improve the law and its enforcement. On a worldwide basis, it is estimated that the value of pirate products sold represents $1,200 million, compared to a global turnover of about $14,000 million. Recently, computer software and in particular computer programs have become a very vulnerable target for pirate activities. Programs are easily reproduced at costs which only represent a tiny fraction of the cost of their original development. The Green Paper contains a number of suggestions for a more effective repression of piracy. On the external front greater and improved international cooperation is recommended. On the internal front consideration should be given to extending the 1986 Council Regulation on prohibiting the release for free circulation of counterfeit goods to include goods infringing copyrights. As regards remedies and sanctions, appropriate damages should be available to those whose interests have been damaged; injuctive relief should be available to deal with offenders; confiscation of infringing goods and equipment used to produce them should be introduced where it is not possible at present; and piracy should be treated as a criminal offence, subject to public prosecution and entailing the possibility of imprisonment for serious or repeated offences. The efforts of rights holders and their organizations to develop structures enabling them to act effectively against pirates should be developed
and encouraged. Ad-hoc anti-piracy organizations bringing together different interest groups combine resources and operate with greater effectiveness. New techniques have been developed to facilitate enforcement such as the marking of films to enable the source of seized copies to be identified more easily. II. Private copying The evidence suggests that, with regard to sound recordings, the effects of home copying on the legitimate exploitation of recorded works cannot be quantified with accuracy. Not all home copies substitute for legitimate sales, especially where they are made by persons who have themselves purchased the recording in question, or where copies have been made offair of works which are not for sale. Nevertheless, the fact that digital sound recording allows the consumer to produce a copy which is as good as the studio master tape, makes it plausible that home copying could in future substitute for purchases of originals to a much greater extent than at present. The Green paper considers a number of options to address the issue of limiting home copying in an internal market context, i.e. without creating new barriers. The Commission accepts that home copying of digital sound recordings by digital means could prejudice the interests of right holders if allowed to develop in an uncontrolled way. This risk can be countered by the introduction of technical measures to limit the scope of the copying facility of digital audio machines. As far as analogue products are concerned and since technical solutions do not appear to be a viable proposition the Commission has examined the option of harmonising levies on blank tape and equipment. It would appear that in those Member States which have introduced or which are contemplating the introduction of a levy on blank audio tapes, the average level of such levies does not result in substantial differences. Moreover, existing levy schemes do not and, indeed, need not entail systematic controls at the borders as is currently the case with respect to fiscal measures. In conclusion, the Commission recognises that the practice of home copying may cause losses to right holders in cases where such copying
9
3 CLSI~
substitutes for sales of prerecorded material. It therefore proposes a series of related measures which, in combination, aim to reduce home copying practices (and thus indirectly to stimulate sales of prerecorded sources) rather than to sanction the home copying phenomenon by means of harmonization at Community level. Thus the limitation of the copying by technical means of right holders' works, the introduction of a series of anti-piracy measures and the freedom for Member States to maintain or introduce levies should all contribute to an enhancement of right holders' revenues. III. Distribution A major area of difference between copyright legislations of Member States concerns the economic right of distribution, i.e. the exclusive right to authorize that a work or copies thereof be made available to the public. In other words, the author's control over the commercial exploitation of his work within a given jurisdiction. The question to be considered is whether to approximate or harmonize at Community level a distribution right and, if so, in respect of which works and which rights pertaining to those works. There is also a necessity for a Community approach to the concept of exhaustion (in particular in connection with rentals) as well as to the length of protection. Copyrights are considered to be exhausted or consumed when the protected goods are first lawfully marketed with the consent of the author. They are considered expired when the legal period of protection laid down by law comes to an end. Current developments in the distribution of sound and video recordings suggest that the introduction of a rental right in all Member States of the Community should be considered a priority matter. Such a right should be granted to authors of works embodied in sound and video recordings, to the producers of such recordings and to performers whose performances have been fixed thereon. With regard to the choice to be made in this context between a right to authorize rental and a right to equitable remuneration, the right to authorize rental appears the better option. A right to authorize rental would enable right holders to decide on the extent to which their products
SEPT - OC|"
Tile CO,H,PUTER I_AW AND SECURITY REPORT
would be marketed by rental or sale on the basis of commercial considerations including the probable impact of one form of marketing on the other. A right to equitable remuneration would be far less satisfactory from this point of view and would inevitably involve the uncertainty and complexity of procedures designed to determine
what is equitable remuneration in any given case. The Commission believes that the possibility of a proposal for a Directive, to be based on Article 100A EEC, to introduce a rental right for sound and video recrodings in all Member States of the Community, should be studied.
3 CLSR
I ~ i ~
~
~
parties are kindly to ~ ~ on in ~ ~ to the
of the
Commiss~n ~ the ~ n Commum'tles, ~ , me de la
Loi. , - 1 ~ ~ ~,m. S ~ s ~ W ~ mrked " ~ - commem.s'" .
.
.
.
Key Findings - Computer Programs and Databases The Commission has decided within the framework of the completion of the internal market, to examine as a matter of priority the issues relating to the legal protection of computer programs and subsequently to submit a proposal for a Council Directive on the legal protection of computer programs. For this purpose, certain preliminary consultations have already been concluded, which have confirmed the desirability of an early initiative in this field. Further, all information received and experience gained from participation in the discussion at the international level on the appropriate protection system indicates that the Community approach should be within the framework of copyright and related rights. The Commission intends to submit to the Council as a matter of urgency a proposal for a Directive based on Article 100 A EC for the protection of computer programs. As regards the contents of the Directive, and especially in the light of Community standardization policy, the Commission would like to receive comments on whether:
j)
DATABASES The storage of copyright works in full or in part within computerized information systems creates a number of legal problems for which, at present the most appropriate solution would seem to be legal action to protect the compilation of works within a database where those works are themselves the object of copyright protection. Specific legal action aiming at resolving existing difficulties seems to be at best premature. The Commission is also considering whether the protection of the mode of compilation of the database itself should extend to databases composed of material which is not in itself protected by copyright. Such action would only be taken if it were felt that the considerable investment which the compilation of a database represents could best be served by copyright protection rather than by other means. The Commission would welcome comments from informed circles on the following matters. a) whether the mode of compilation within a database of works should be protected by copyright and, b) whether that right to protect the mode of compilation, in addition to possible contractual arrangements to that effect, should be extended to databases containing material not protected by copyright and whether this protection should be copyright or a right sui generis.
a) the protection should apply to computer programs fixed in any form; b) programs should be protected where they are original in the sense that they are the result of their creator's own intellectual effort and are not commonplace in the software industry; c) access protocols, interfaces and methods essential for their realization should be specifically excluded from protection; d) rights to authorize restricted acts should include a broad use right either formulated as such or as a consequence of rights to authorize reproduction, rental adaptation and translation; for these latter rights, specific provision should be made in any event; e) the adaptation of a program by a legitimate user exclusively for his own purposes and within the basic scope of a licence should be permitted; f) the reproduction of a computer program for private purposes should not be permitted without authorization of the right holder whereas the production of back-up copies by a legitimate user should be permitted without authorization; g) the term of protection should start with the creation of the program and last for an appropriate number of years to be fixed by the Directive; a choice will have to be made between a period of 50 years and one in the region of 20 or 25 years; h) the issue of authorship of computer programs, including authorship in respect of computer-generated programs, I
should be left largely to Member States but with national laws having to establish who, in the absence of contractual arrangements to the contrary, is to be considered the author; protection would be available for creators who are nationals of States adhering to the Berne Convention or the Universal Copyright Convention or enterprises of such countries or possibly to all natural and legal persons irrespective of origin or domicile; in infringement cases the onus of proof in respect of copying should be shifted to the alleged infringer once the plaintiff makes available to the Court the different versions of his program to which he has access and shows similarity and that the alleged infringer has had access to the right holder's program.
Timetable for submission Comments on above mentioned suggestions should be submitted to the Commission not later than 1 January 1989 and in the case of computer programs as soon as possible.
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10
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J
.
.
.
.
.
.
.
EUROPEAN COMMISSION GREEN PAPER 0N COPYRIGHT .......!(1) COM ( 8 8 ) 1 7 2 .... .
.
.
.
The Green Paper on Copyright adopted by the Commission discusses the main problem areas in relation to operating an internal market without frontiers and explores possible solutions. It takes full account of the urgent need to adapt copyright legislation to ongoing technological developments. A key aspect is the need to deal with commercial piracy of goods protected by copyright both inside and outside the Community. Presenting the Green paper, Lord Cockfield said: "'Copyright legislation is undergoing a rapid and sometimes difficult transition period as we struggle to adapt concepts devised in the age of the messenger on horseback to the age of electronic transmission. Advances in technology are breaking down the traditional barriers between litera~ scientific, musical, and artistic works, both in terms of the products themselves and their exploitation and the necessary legal framework for their protection. The challenge before us is to devise a new copyright framework which will accommodate and maximise these advances in technology.'" Indeed, differences in national intellectual property laws have a direct, often hindering impact on Intra-Community trade and on the ability of enterprises to treat the common market as a single environment for their economic activities. This situation is further complicated by the need to adapt existing legislation to technical change in a number of areas including the digital recording, computer software, data bases, microcircuits and biotechnology. In order to create a firm legal foundation for investment in new techniques, legislation must be adapted in a convergent manner so that these changes will not create further barriers in an already imperfect intellectual property market. The Green Paper is a discussion document intended primarily to serve as a basis for extensive consultations of interested circles on a number of copyright issues. In the light of the comments and submissions which the Commission hopes to receive in the next few months, legislative initiatives will be proposed as
appropriate. Any discussion of copyright and how to protect it must encompass not only the legitimate rights of the author, but also the aspirations of citizens and industry for making use of the ideas and knowledge covered by intellectual property rights. This is particularly relevant in high technology sectors where in the wake of the 1992 objective the Community must strengthen its research and development capacity.
Public interest The public interest is best served by encouraging technical progress, even where it means that original works can be reproduced, both cheaply and easily. It is essential to foster a legal environment which favours creativity, innovation, and competition. In the context of completing the internal market one of the relevant effects of copyright is inevitably to limit the freedom of third parties to compete by marketing similar products. In the more traditional domains of copyright applying to literary, musical and dramatic works, this has not posed a significant problem since independent works of the same genre can in law and in practice still compete with each other quite fairly. In areas which have developed more recently, however, the restrictive effects of copyright protection on legitimate competition can become excessive, for example, in respect of purely functional industrial designs and computer programs. In such cases, the exercise of copyright protection can in practice amount to a genuine monopoly, unduly broad in scope and lengthy in duration. Priority issues The Green Paper deals with a limited number of priority issues where differences between national legislations are likely to cause difficulties for the functioning of the internal market and where the existing framework of copyright legislation is being called into question mainly as a consequence of advances in technology over the last decade. The most important issues which might give rise to problems
SEP[
-
OCI
"- TIlE COMPUTER LAW AND SECURITY REPORT
when ensuring free circulation in the internal market of goods and services covered by copyright legislation are commercial piracy, private copying and distribution. I. Commercial piracy Commercial copyright piracy has emerged as a serious problem for industry and creative artists depending upon due respect of copyright for their living. The significance of piracy varies from sector to sector and with the passage of time. For example, although video recording is a relatively recent phenomenon, illegitimate video recordings on the market both within and outside the Community now sometimes outnumber those legitimately produced. The piracy problem has become an issue of great concern to the sound recording industry which has made great efforts and taken numerous initiatives to improve the law and its enforcement. On a worldwide basis, it is estimated that the value of pirate products sold represents $1,200 million, compared to a global turnover of about $14,000 million. Recently, computer software and in particular computer programs have become a very vulnerable target for pirate activities. Programs are easily reproduced at costs which only represent a tiny fraction of the cost of their original development. The Green Paper contains a number of suggestions for a more effective repression of piracy. On the external front greater and improved international cooperation is recommended. On the internal front consideration should be given to extending the 1986 Council Regulation on prohibiting the release for free circulation of counterfeit goods to include goods infringing copyrights. As regards remedies and sanctions, appropriate damages should be available to those whose interests have been damaged; injuctive relief should be available to deal with offenders; confiscation of infringing goods and equipment used to produce them should be introduced where it is not possible at present; and piracy should be treated as a criminal offence, subject to public prosecution and entailing the possibility of imprisonment for serious or repeated offences. The efforts of rights holders and their organizations to develop structures enabling them to act effectively against pirates should be developed
and encouraged. Ad-hoc anti-piracy organizations bringing together different interest groups combine resources and operate with greater effectiveness. New techniques have been developed to facilitate enforcement such as the marking of films to enable the source of seized copies to be identified more easily. II. Private copying The evidence suggests that, with regard to sound recordings, the effects of home copying on the legitimate exploitation of recorded works cannot be quantified with accuracy. Not all home copies substitute for legitimate sales, especially where they are made by persons who have themselves purchased the recording in question, or where copies have been made offair of works which are not for sale. Nevertheless, the fact that digital sound recording allows the consumer to produce a copy which is as good as the studio master tape, makes it plausible that home copying could in future substitute for purchases of originals to a much greater extent than at present. The Green paper considers a number of options to address the issue of limiting home copying in an internal market context, i.e. without creating new barriers. The Commission accepts that home copying of digital sound recordings by digital means could prejudice the interests of right holders if allowed to develop in an uncontrolled way. This risk can be countered by the introduction of technical measures to limit the scope of the copying facility of digital audio machines. As far as analogue products are concerned and since technical solutions do not appear to be a viable proposition the Commission has examined the option of harmonising levies on blank tape and equipment. It would appear that in those Member States which have introduced or which are contemplating the introduction of a levy on blank audio tapes, the average level of such levies does not result in substantial differences. Moreover, existing levy schemes do not and, indeed, need not entail systematic controls at the borders as is currently the case with respect to fiscal measures. In conclusion, the Commission recognises that the practice of home copying may cause losses to right holders in cases where such copying
9
3 CLSI~
substitutes for sales of prerecorded material. It therefore proposes a series of related measures which, in combination, aim to reduce home copying practices (and thus indirectly to stimulate sales of prerecorded sources) rather than to sanction the home copying phenomenon by means of harmonization at Community level. Thus the limitation of the copying by technical means of right holders' works, the introduction of a series of anti-piracy measures and the freedom for Member States to maintain or introduce levies should all contribute to an enhancement of right holders' revenues. III. Distribution A major area of difference between copyright legislations of Member States concerns the economic right of distribution, i.e. the exclusive right to authorize that a work or copies thereof be made available to the public. In other words, the author's control over the commercial exploitation of his work within a given jurisdiction. The question to be considered is whether to approximate or harmonize at Community level a distribution right and, if so, in respect of which works and which rights pertaining to those works. There is also a necessity for a Community approach to the concept of exhaustion (in particular in connection with rentals) as well as to the length of protection. Copyrights are considered to be exhausted or consumed when the protected goods are first lawfully marketed with the consent of the author. They are considered expired when the legal period of protection laid down by law comes to an end. Current developments in the distribution of sound and video recordings suggest that the introduction of a rental right in all Member States of the Community should be considered a priority matter. Such a right should be granted to authors of works embodied in sound and video recordings, to the producers of such recordings and to performers whose performances have been fixed thereon. With regard to the choice to be made in this context between a right to authorize rental and a right to equitable remuneration, the right to authorize rental appears the better option. A right to authorize rental would enable right holders to decide on the extent to which their products
SEPT - OC|"
Tile CO,H,PUTER I_AW AND SECURITY REPORT
would be marketed by rental or sale on the basis of commercial considerations including the probable impact of one form of marketing on the other. A right to equitable remuneration would be far less satisfactory from this point of view and would inevitably involve the uncertainty and complexity of procedures designed to determine
what is equitable remuneration in any given case. The Commission believes that the possibility of a proposal for a Directive, to be based on Article 100A EEC, to introduce a rental right for sound and video recrodings in all Member States of the Community, should be studied.
3 CLSR
I ~ i ~
~
~
parties are kindly to ~ ~ on in ~ ~ to the
of the
Commiss~n ~ the ~ n Commum'tles, ~ , me de la
Loi. , - 1 ~ ~ ~,m. S ~ s ~ W ~ mrked " ~ - commem.s'" .
.
.
.
Key Findings - Computer Programs and Databases The Commission has decided within the framework of the completion of the internal market, to examine as a matter of priority the issues relating to the legal protection of computer programs and subsequently to submit a proposal for a Council Directive on the legal protection of computer programs. For this purpose, certain preliminary consultations have already been concluded, which have confirmed the desirability of an early initiative in this field. Further, all information received and experience gained from participation in the discussion at the international level on the appropriate protection system indicates that the Community approach should be within the framework of copyright and related rights. The Commission intends to submit to the Council as a matter of urgency a proposal for a Directive based on Article 100 A EC for the protection of computer programs. As regards the contents of the Directive, and especially in the light of Community standardization policy, the Commission would like to receive comments on whether:
j)
DATABASES The storage of copyright works in full or in part within computerized information systems creates a number of legal problems for which, at present the most appropriate solution would seem to be legal action to protect the compilation of works within a database where those works are themselves the object of copyright protection. Specific legal action aiming at resolving existing difficulties seems to be at best premature. The Commission is also considering whether the protection of the mode of compilation of the database itself should extend to databases composed of material which is not in itself protected by copyright. Such action would only be taken if it were felt that the considerable investment which the compilation of a database represents could best be served by copyright protection rather than by other means. The Commission would welcome comments from informed circles on the following matters. a) whether the mode of compilation within a database of works should be protected by copyright and, b) whether that right to protect the mode of compilation, in addition to possible contractual arrangements to that effect, should be extended to databases containing material not protected by copyright and whether this protection should be copyright or a right sui generis.
a) the protection should apply to computer programs fixed in any form; b) programs should be protected where they are original in the sense that they are the result of their creator's own intellectual effort and are not commonplace in the software industry; c) access protocols, interfaces and methods essential for their realization should be specifically excluded from protection; d) rights to authorize restricted acts should include a broad use right either formulated as such or as a consequence of rights to authorize reproduction, rental adaptation and translation; for these latter rights, specific provision should be made in any event; e) the adaptation of a program by a legitimate user exclusively for his own purposes and within the basic scope of a licence should be permitted; f) the reproduction of a computer program for private purposes should not be permitted without authorization of the right holder whereas the production of back-up copies by a legitimate user should be permitted without authorization; g) the term of protection should start with the creation of the program and last for an appropriate number of years to be fixed by the Directive; a choice will have to be made between a period of 50 years and one in the region of 20 or 25 years; h) the issue of authorship of computer programs, including authorship in respect of computer-generated programs, I
should be left largely to Member States but with national laws having to establish who, in the absence of contractual arrangements to the contrary, is to be considered the author; protection would be available for creators who are nationals of States adhering to the Berne Convention or the Universal Copyright Convention or enterprises of such countries or possibly to all natural and legal persons irrespective of origin or domicile; in infringement cases the onus of proof in respect of copying should be shifted to the alleged infringer once the plaintiff makes available to the Court the different versions of his program to which he has access and shows similarity and that the alleged infringer has had access to the right holder's program.
Timetable for submission Comments on above mentioned suggestions should be submitted to the Commission not later than 1 January 1989 and in the case of computer programs as soon as possible.
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