At the same time as publishing its proposals on term extension in July, the European Commission also published a Green Paper to solicit stakeholders’ views on certain issues, primarily relating to exceptions and reservations, and connected with the role of copyright in the knowledge economy in the EU. The Directive on the harmonisation of certain aspects of copyright and related rights in the information society (2001/29/EC) (the “Directive”) already provides, inter alia, an exhaustive list of exceptions and limitations to the protection of copyright and related rights that Members States may implement. Although the Directive achieved a degree of harmonisation, differences in national implementation and subsequent technological changes have led to this consultation. The Directive’s recitals recognise that a balance needs to be struck between ensuring a reward to a copyright owner for the creation of a work, and the future investment and dissemination of knowledge products. Therefore, a number of the Directive’s exceptions are aimed specifically at the dissemination of knowledge for research, science and educational purposes. The Green Paper seeks feedback in relation to these exceptions by 30 November 2008.
Libraries and similar institutions benefit from Article 5(2)(c), permitting reproduction in respect of specific acts for non-commercial purposes (which arguably only covers acts necessary for the preservation of works contained in libraries’ catalogues) and Article 5(3)(n), a narrowly formulated exception to the communication to the public right for the purpose of research or private study by means of dedicated terminals located at the premises of such establishments. Stakeholders are requested to provide their views on whether the exceptions should be expanded to cover format shifting (e.g. digitisation), and to permit entire collections to be scanned in order to permit end users to access them remotely. Alternatively, as publishers are setting up online databases permitting subscribers to access material for a fee, the exceptions could remain unchanged and libraries could enter into licensing schemes with publishers.
People with a disability need to access works in formats adapted to their needs. They are assisted by Article 5(3)(b), which allows for noncommercial uses directly related to the disability to the extent required by the disability. However, some Member States have restricted the exception to certain categories of disabled person (e.g. visually impaired). Further, although fair compensation for rightholders is permitted, given the cost of converting works to accessible formats and the limited resources available, the Green Paper questions whether it should apply to this exception.
Dissemination of study materials through online networks can have a beneficial effect on the quality of education and research, but also carries the risk of copyright infringement when works are digitised and/or copyrighted works are made available to the public. Article 5(3)(a) provides an exception to reconcile the legitimate interests of rightholders with the wider goal of public access to knowledge. However, this exception has tended to be implemented narrowly (e.g. distance learning is not explicitly covered), and with considerable differences between Member States. Some countries have restricted the exception to the right of reproduction whilst others have extended it to rights of communication and making available to the public, some make a distinction between analogue and digital works whilst others do not, and the permitted length of excerpts from works varies considerably. Particular problems arise when students enrol for courses in countries other than their own, or when teachers or researchers carry out their activities in several institutions located in different counties. The Green Paper raises a number of queries directed to clarifying this exception and whether certain mandatory minimum rules should be introduced.
Finally, the phenomenon of usercreated content, including blogs, podcasts, wikis and video-sharing is raised. The Directive does not provide an explicit exception allowing existing copyright protected works to be used for creating new or derivative works although certain exceptions provide flexibility in this regard (e.g. Article 5(3)(d), which allows quotations for purposes such as criticism or review to the extent required by the specific purpose and in accordance with fair practice, and Article 5(3)(k), which exempts uses for the purposes of caricature, parody or pastiche). However, the Green Paper suggests that a separate exception for transformative user-created content could stimulate innovative uses of protected works and lead to the creation and dissemination of new, potentially valuable works. It recognises that any such exception would need to comply with the three step test laid out in Article 5(5) of the Directive so that it (i) applies only in certain cases; (ii) does not conflict with the normal exploitation of the work or other subject matter; and (iii) does not unreasonably prejudice the legitimate interests of the rightsholder. The Green Paper requests feedback on whether more precise rules and/or a specific exception are required for user-created content.
This Green Paper is not the only review of exceptions and reservations to copyright and related rights being undertaken in the Community. In the UK, as a response to the recommendations of the Gowers Review on Intellectual Property, the UK Intellectual Property Office has been undertaking a review of the UK implementation of certain of these aspects of the Directive and so has solicited feedback on extending existing exceptions for educational purposes, format shifting, research and private study, for libraries and archives and also on whether or not an exception for parody should be introduced. It has also undertaken a consultation on whether or not to repeal, or at least to limit further in scope, certain existing exemptions from the restricted act of public performance for sound recordings and performers’ rights.