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After the Info. Soc Directive… the Long March to ‘harmonisation’ Barbara Stratton Senior Copyright After the Info. Soc Directive… the Long March to ‘harmonisation’ Barbara Stratton Senior Copyright Adviser CILIP: Chartered Institute of Library and Information Professionals Secretary, LACA: the Libraries and Archives Copyright Alliance, UK EBLIDA-CEG seminar, Vilnius 26 th October 2006

Meet the Commissioners DG Internal Market and Services Meet the Commissioners DG Internal Market and Services

Meet the Commissioners DG Information Society and Media Meet the Commissioners DG Information Society and Media

MARKT. D Knowledge-based economy Director Jacqueline Minor Adviser Luis Gonzalez Vaque Markt. D. 1 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. Majer Ms J. Jug Mr Leonardo Cervera Navas Ms V. Guennelon Ms D. Muffat-jeandet Ms Julie Samnadda Mr J. Van Der Veer Ms 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 DG Internal Market D. 1 Copyright and Knowledge-based Economy Tilman Lueder, Head of Unit DG Internal Market and Services

Tilman Lueder said last year 13 th Annual Conference on IP Law & Policy, Tilman Lueder said last year 13 th 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 37/docs/special-feature_en. Tilman also said… Single Market News 37, May 2005 http: //europa. eu. int/comm/internal_market/smn 37/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 'takeup' of legitimate digital remuneration models. " Copyright at the crossroads?

Ø Agenda is to recast copyright to make it ‘fit’ for the online environment Ø Agenda is to recast copyright to make it ‘fit’ for the online environment http: //europa. eu. int/comm/internal_market/copyright/docs/lev y_reform/roadmap_82_83_en. pdf Ø Is seeking to take an evidence-based approach to the evaluation of the Acquis and specific Directives. DG Markt D work programme

Ø 2004 Consultation attracted 80 responses Ø The problem perceived by the Commission v. Ø 2004 Consultation attracted 80 responses Ø The problem perceived by the Commission v. Rights managed by national collecting societies could lead to content being subject to clearance 25 times. v. National collecting societies a 19 th century model inappropriate for internet age. v. No cross-border online licences available. v. Librarians told the Commission to address the issues of lack of transparency, poor management, and failures in royalty distribution Ø Commission Recommendation on Collective Cross-border Management of Copyright and Related Rights for Legitimate Online Music Services 18. 10. 2005 Ø 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. Ø How are users going to know where to clear online music rights? DG Markt D work programme Collective Rights Management

Ø November 2004: ECJ judgments on racing fixtures cases Scope of sui generis protection Ø November 2004: ECJ judgments on racing fixtures cases Scope of sui generis protection does not include creation of the underlying data Ø Sui generis = “substantial investment” Ø Ø October 2005: Creative Economy Conference, London – Ø Ø Commission indicates withdrawal of the Directive is a serious option – “Shock! Horror!” from rightholders. December 2005: Commission’s 1 st Evaluation of the Directive. Consultation closed 31 st March 2006. Ø First evidence-based, rather than faith-based evaluation of an IPR. Ø 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. Ø Four Options: withdraw Directive, repeal sui generis right, amend sui generis right, do nothing. DG Markt D work programme Review of Database Directive 1996

Ø Libraries are producers of non-original dbs protected only by sui generis right Ø Ø Libraries are producers of non-original dbs protected only by sui generis right Ø Problems because of different traditions regarding ‘originality’ Ø Ø Ø 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 Ø Ø Ø 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

Ø Library lobby For amendment of sui generis right to address its complexities Ø Ø Library lobby For amendment of sui generis right to address its complexities Ø To amend the renewable 15 year term of protection to eliminate perpetual protection. Ø Risk of differing opinions along national lines re withdrawal of the Directive or repeal of sui generis right Ø Ø Stakeholder consultation revealed a general lack of enthusiasm for the Directive’s withdrawal Ø Result = no action by the Commission DG Markt D work programme Review of Database Directive 1996

Ø 10+ years of the copyright Acquis = 11 Directives Ø A fast moving Ø 10+ years of the copyright Acquis = 11 Directives Ø A fast moving technical environment …time to assess…codification of Community law Ø October 2004: Consultation on the Acquis Communautaire in copyright & related rights - 139 responses Ø Update the legislative framework in the field of copyright and related rights - increase its consistency and simplify the provisions Ø 7 December 2005: EC tender for a study into the Acquis Ø Study on the Acquis to include Ø Reform of copyright levies on equipment & media used for private copying (NB no levy system in UK & Ireland). Due late 2006 Ø Review of the Term Directive 1993 v In particular, term for sound recordings - in the face of industry pressure to extend the term for sound recordings and performances in them. v DG Internal Market is to provide an impact assessment at the end 2006. Ø Review of ownership of co-written and musical works DG Markt D work programme Review of Acquis Communautaire 1

ØReview of the Information Society Directive 2001/29/EC also intended ØOriginally was to look only ØReview of the Information Society Directive 2001/29/EC also intended ØOriginally was to look only at the Directive’s implementation. ØNow to be an evaluation review to establish whether or not has it achieved its policy objectives. This is an important change. Review will include ØThe contribution of copyright to knowledge economy ØThe role of consumers ØDifficulties that arise for all the stakeholders ØThe Member States’ transposition of the exceptions & limitations into national legislation ØA look at technical protection measures (TPMs) DG Markt D work programme Review of Acquis Communautaire 2

Ø PLR (Public Lending Right) Ø Spain, Ireland, Portugal, Italy, Luxembourg being taken before Ø PLR (Public Lending Right) Ø Spain, Ireland, Portugal, Italy, Luxembourg being taken before the ECJ by the Commission for “incorrect application of the public lending right” Ø 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. Ø Info. Soc Directive implementation Ø France, Finland, Spain and the Czech Republic for “nonimplementation”…although the French have been in the process for some time and have now implemented in 2006 amid much controversy DG Markt D work programme Current infringement proceedings

Ø Amended Proposal for a Directive … on Criminal Measures Aimed at Ensuring the Ø 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: //eurlex. europa. eu/Lex. Uri. Serv/site/en/com/2006/com 2006_0168 en 01. pdf ØArticle 1 “…These measures shall apply to intellectual property rights provided for in Community legislation and/or national legislation in the Member States. ” ØArticle 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. v Scope of criminal sanctions for infringement extended beyond that of TRIPS Art. 61 to all IPRs covered by Community law v No financial benefit or profit required – ‘commercial scale’ is much wider and easier to achieve e. g. rightholders claim individual P 2 P file sharing is on a ‘commercial scale’. v Could librarians risk accusation of aiding and abetting? Unlikely if unintentional, but Member States might take different approaches. DG Justice & Home Affairs IPRED 2

ØEuropean Digital Library (EDL) Ø Flagship project within Commission’s i 2010 strategy to boost ØEuropean Digital Library (EDL) Ø Flagship project within Commission’s i 2010 strategy to boost digital economy Ø 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. Ø Builds on Europe's rich heritage combining multicultural and multilingual environments with technological advances and new business models. ØEDL High Level Group established February 2006 Ø Brings together major stakeholders from industry and cultural institutions. Includes a number of national librarians and archivists. Ø First tasks are to tackle the barriers posed by copyright and encourage public-private collaboration for digitisation. DG Information Society i 2010 Digital Libraries 1

Ø Commission Recommendation to Member States (24/08/06) Ø Digitisation of content – large-scale, plus Ø Commission Recommendation to Member States (24/08/06) Ø Digitisation of content – large-scale, plus using already digitised content Ø Online accessibility v By seeking concrete solutions on copyright issues, e. g. mechanisms to deal with "orphan" works and works that are out of print. Ø Digital Preservation Ø Establish national strategies and plans for the long-term preservation of, and access to, digital material. Ø Adapt legislation, where necessary v To allow multiple copying and migration for preservation purposes v To facilitate web-preservation and deposit of digital material for preservation purposes. http: //europa. eu. int/information_society/activities/digital_libraries/index_en. ht m DG Information Society i 2010 Digital Libraries 2

ØPublic Consultation on Content Online (Closed 13/10/06) Ø On ‘ways to stimulate the growth ØPublic Consultation on Content Online (Closed 13/10/06) Ø 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’. Ø Addressed broader issues such as intellectual property rights management in the digital age. Ø The creation of an open and competitive single market for online content is one of the key aims of the i 2010 Initiative. http: //ec. europa. eu/comm/avpolicy/other_actions/content_online/index_en. ht m#consultation Audiovisual & Media Policies Content Online 1

Ø EBLIDA Response to Content Online Ø ‘Bottom line’ was Ø All the available Ø EBLIDA Response to Content Online Ø ‘Bottom line’ was Ø All the available exceptions to copyright should be made to operate in all Member States Ø 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 Ø It should be established clearly in law that any contractual term purporting to nullify a statutory exception is void. Audiovisual & Media Policies Content Online 2

Ø On Digital Rights Management Systems, February 2003 Ø On the Proposal for a Ø On Digital Rights Management Systems, February 2003 Ø On the Proposal for a Directive…. on measures and procedures to ensure the enforcement of intellectual property rights (05. 12. 2003) (aka IPRED 1) Ø On the Directive 2004/48/EC …on the enforcement of intellectual property right 29. 04. 2004 (aka IPRED 1) Ø on the infringement procedures over Public Lending Right, March 2004 Ø (see also Report from the Commission…on the public lending right in the European Union (16. 09. 2002)) Ø DG Internal Market’s consultation…on the Management of Copyright and Related Rights in the Internal Market, June 2004 Ø 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

Ø DG Internal Market’s Staff Working Paper…Review of the EC Legal Framework in the Ø 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 Ø The Commission Working Party 29 Working Document 104 on Data Protection Issues Related to Intellectual Property Rights, March 2005 Ø 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) Ø Resulted in the Commission Recommendation on Collective Crossborder Management of Copyright and Related Rights for Legitimate Online Music Services 18. 10. 2005 EBLIDA Responses/Policy Positions 2003 -2005

Ø To DG Information Society’s “Questions for Online Consultation”, annex to the Communication from Ø To DG Information Society’s “Questions for Online Consultation”, annex to the Communication from the Commission i 2010 Digital Libraries, January 2006 Ø To DG Internal Market’s Working Paper on a First Evaluation of Directive 96/9/EC on the Legal Protection of Databases, March 2006 Ø On DG Research’s Study on the economic and technical evolution of the scientific publication market in Europe, May 2006 Ø To the Commission's White Paper on a Communication Policy, May 2006 Ø To the DG Internal Market’s Stakeholder Consultation on Copyright Levies in a Converging World, July 2006 Ø On Chapters 1 & 2 of the Commission's Green Paper on the European Transparency Initiative, August 2006 Ø To the Commission's (Audiovisual & Media Policies) Public Consultation on Content Online in the Single Market October 2006 EBLIDA Responses/Policy Positions 2006

Ø The Review of the Acquis and the European Digital Library present great opportunities Ø The Review of the Acquis and the European Digital Library present great opportunities for us to influence for change Ø 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. Ø DG Internal Market and Services is advising DG Information Society on the Digital Libraries project. v Will the Info. Soc ‘freaks’ win out against the Internal Market ‘ayatollahs’? Ø 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 A 2 K list archives http: //lists. essential. org/pipermail/a 2 k/ Advocacy and lobbying 1

Ø Libraries and archives Ø Should seek recognition by everyone as ‘trusted intermediaries’ in Ø Libraries and archives Ø Should seek recognition by everyone as ‘trusted intermediaries’ in the digital environment Ø We need to marshall evidence to support our case - faith is not enough Ø Need 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 Ø And lobby in Europe as members of EBLIDA Ø Otherwise Ø Copyright ‘fit’ for the online environment will not benefit civil society, nor the creative and knowledge economies Advocacy and lobbying 2

Ø Adelphi Charter http: //www. adelphicharter. org/ Ø American Library Association OITC http: //www. Ø Adelphi Charter http: //www. adelphicharter. org/ Ø American Library Association OITC http: //www. ala. org/ala/washoff/WOissues/copyrightb/copyright. htm Ø Australian Digital Alliance http: //www. digital. org. au/ Ø Australian Libraries Copyright Committee http: //www. digital. org. au/alcc/ Ø Australian Library and Information Association http: //alia. org. au/advocacy/copyright/ Ø BEUC (European Consumer Organisation) - Consumers Digital Rights page http: //www. consumersdigitalrights. org/cms/index_en. php Ø Center for the Study of the Public Domain, Duke University Law School http: //www. law. duke. edu/cspd/ - James Boyle Home Page http: //jamesboyle. com/ Ø CPTech (Consumer Project on Technology) http: //www. cptech. org/ - Access to Knowledge page www. cptech. org/a 2 k Information sources for Library & User Copyright Advocacy 1

Ø DG Internal Market and Services Copyright and Neighbouring Rights http: //europa. eu. int/comm/internal_market/copyright/index_en. Ø DG Internal Market and Services Copyright and Neighbouring Rights http: //europa. eu. int/comm/internal_market/copyright/index_en. htm Ø DG Information Society i 2010 Digital Libraries initiative http: //europa. eu. int/information_society/activities/digital_libraries/index_en. htm Ø EBLIDA www. eblida. org EBLIDA Response/position papers and linked Commission papers at http: //www. eblida. org/position/index. htm Ø EFF (Electronic Frontier Foundation) www. eff. org Ø e. IFL: Electronic Information for Libraries http: //www. eifl. net/services_ip. html Ø European Digital Rights - EDRI-gram Newsletter www. edri. org Ø Intellectual Property Watch www. ip-watch. org (independent news service reporting on international IP policy) Ø IP Justice www. ipjustice. org Ø Libraries & Archives Copyright Alliance, UK www. cilip. org. uk/laca Ø Open Rights Group, UK http: //www. openrightsgroup. org/ Information sources for Library & User Copyright Advocacy 2