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Strasbourg, 7 November 2001

AP-IP(2001)003

 
 

ADVISORY PANEL ON INTELLECTUAL PROPERTY

(AP-IP)

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Report to the CDMM on International and European Developments in the Field of Copyright and Neighbouring Rights

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Secretariat memorandum
prepared by the
Directorate General of Human Rights

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Introduction

This document contains a report by the AP-IP to the CDMM on International and European Developments in the Field of Copyright and Neighbouring Rights.

1. INTRODUCTION

This first report by the AP-IP to the CDMM focuses on recent developments in the field of copyright and neighbouring rights at the European and international levels. Although the report focuses to a large extent on developments within the European Union and WIPO, it should be noted that work in this field also takes place within other international organisations such as the WTO and UNESCO.

As for the Council of Europe, it is worth highlighting that two instruments have been adopted recently, which both aim at reducing piracy of intellectual property. The Convention on Cyber-crime was finalised in September 2001. It will be formally adopted by the Committee of Ministers on 8 November 2001 and opened for signature in Budapest on 23 November 2001. The Convention will enter into force when 5 States, including at least 3 Council of Europe member States, have ratified it. It contains in Article 10 a provision whereby the Parties undertake to establish as criminal offences under their domestic law any infringements of copyright or neighbouring rights when committed wilfully, on a commercial scale and by means of a computer system.

Furthermore, on 5 September 2001, the Committee of Ministers of the Council of Europe adopted a Recommendation on measures to protect copyright and neighbouring rights and combat piracy, especially in the digital environment (Rec (2001) 7). This text had been drafted by the MM-S-PR, whose mandate came to an end in December 2000.

The aim of the work leading up to this new Recommendation, as the CDMM will recall, was to provide member States with an updated legal arsenal in the fight against digital piracy. The Recommendation is based on an older text, Recommendation No. R (88) 2 on measures to combat piracy in the field of copyright and neighbouring rights, taking into account the technological progress and recent international standard-setting, especially the 1994 TRIPS Agreement and the two new WIPO treaties adopted in 1996.

The Recommendation urges the Council of Europe member States to ratify the WIPO treaties as soon as possible, bearing in mind that an effective protection of rights holders is increasingly dependent on the harmonisation of such protection at the international level. Since these treaties only cover certain categories of rights holders, the Recommendation provides that other categories of rights holders, i.e. broadcasters, producers of databases and audiovisual performers as regards their fixed performances, should also be accorded protection adapted to the digital environment.

Several different ways of tackling piracy are recommended. Firstly, piracy should be a criminal offence under national law. Over and above action based on complaints by victims, member States should provide for the possibility of ex officio action by public authorities. As regards civil law, the courts should have the possibility to order provisional measures in order to prevent an infringement or to preserve relevant evidence. These measures may, in case of need, be taken without hearing the affected party.

Finally, the Recommendation suggests possible measures regarding the illegal production of optical discs (CDs, DVDs etc.). It is recommended that member States should study the possibility of introducing a legal obligation to use a unique identification code when producing such discs. This would help determining the origin of a suspect product.

The MM-S-PR has drawn up another text, but which has not yet been approved by the CDMM. This is the draft Recommendation on measures to enhance the protection of the neighbouring rights of broadcasting organisations.

2. RECENT DEVELOPMENTS AND PROBLEMS1

Regarding recent developments in the field of copyright and neighbouring rights, the Panel has decided to focus on the following problem areas: enforcement of copyright and neighbouring rights in Europe and the level of piracy, including national responses in order to tackle piracy and to protect cultural industries; new problems related to technological developments; remuneration for private copying; the relationship between technical measures and access to protected works; and, finally, questions of copyright contract law.

2.1. Enforcement of copyright and neighbouring rights in Europe and the level of piracy

As regards the European Union, the European Commission published on 17 November 2000 a Communication on the follow-up to the Green Paper on combating counterfeiting and piracy in the single market.2 According to the Communication, the scale on which counterfeiting and piracy take place in the Single Market is considerable and generally increasing, even if it is difficult to quantify because of the clandestine nature of these activities. The estimate is that European Union companies lose every year between € 400 and € 800 million in the Internal Market because of this. The share of counterfeiting/piracy in % percent of legitimate trade is considered to be 39% for software, 16% for audiovisual products, and 10% for music.

The Communication indicates a lack of uniformity in the systems of sanctions. These disparities mean that counterfeiting and piracy is concentrated in particular areas of the European Union since counterfeit and pirated products tend to be manufactured and sold in countries where the repression of counterfeiting and piracy is less effective than elsewhere.

Less information is available on the situation in non-EU European States, including associated countries. The situation is probably not better, neither in terms of an adequate legal framework nor concerning its enforcement. Combating counterfeiting and piracy is among the priorities of the European Commission in the enlargement negotiations. Among the measures that the Commission is advocating is stricter border controls of imported goods and in general strengthening the administrative and judicial capacity to ensure effective enforcement of legislation.3

Right holders organisations have pinpointed several particularly problematic countries and areas of illegal activity.4 In many central and eastern European countries, the illegal production of CDs is a problem. Here, rights holders organisations such as IFPI advocate tighter control of CD production through CD plants regulations.5 A concerted effort covering the whole region is needed since often the illegal production is moved from one country to another depending on the vigilance of the authorities.

2.2. New technologies

New copying and distribution techniques based on digital and networking technologies are having deep repercussions on the number and quality of copyright transactions. On the one hand, these technologies enable a much greater and less costly distribution of copyrighted materials. On the other hand, in view of the relative ease of copying and of transmitting copies, they also result in a loss of control by the rights holders regarding the exploitation of their subject matter protected by copyright.

Although some questions in this area have already been clarified (in particular, the definition of the so-called making available right), a number of other important issues still remain to be solved.

One of these issues is to strike an appropriate balance between proprietary and non-proprietary interests by way of formulating a set of adequate limitations to exclusive copyright prerogatives. For EU-Member States and those States which are bound by the European Economic Area Agreement and Europe Agreements, the EU Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society6 has set a mandatory framework. But, even within this framework, the discussion on the proper reach of these exceptions, which are mostly non-mandatory, at the national level is by no means terminated.

Another issue is how to deal with particular Internet features such as hyperlinks. On the one hand, hyperlinks are more effective than creating access to a paper copy of the same copyrighted content since they provide a “copy machine” at the same time. On the other hand, hyperlinks are one of the most characteristic features of the Internet, and can therefore hardly be declared in general to be in violation of copyright.

Another feature is software, which enables downloading and exchange of music free of charge (and mostly without authorisation by the author and the rights holders), such as Napster and Gnutella. Although under many national copyright laws the legal liability of those who maintain the respective sites, distribute the software, and eventually even those who individually download unauthorised music files can easily be established, the problem in practice rather seems to be one of tracking such infringements and enforcing copyright. In discussing these questions, the “race” between ever increasing bandwidth for transmission and the ever-increasing amount of data to be transmitted should be taken into consideration.

Moreover, the question is how to secure at least an adequate remuneration of authors and rights holders in the proceeds of the exploitation and use of their material protected by copyright and neighbouring rights. One answer points to collecting societies, which might assume the task of centralised licensing agencies. Another answer would involve extending the system of imposing levies on the hardware necessary for copying to digital equipment. However, it needs to be clarified which part of the digital chain (scanner, hard-disc, printer, CD-burner, server) would be the appropriate “device” to be subjected to a levy, and how such a levy would have to be calculated in order to compensate authors and rights holders adequately for the copies made, without over-burdening the producer of hardware devices and the consumer. In addition, if this alternative was to be followed, the problem of transfrontier distortion of competition would have to be addressed, which arises if a levy is imposed in one State but not in another, so that the individual end-user can avoid the levy by directly ordering the device via Internet from the country where no levy is imposed. A third answer might be to use technological measures in order to control access to and/or copying of protected subject matter, thus correcting market failures which exist in the analogue environment and to which collective administration of rights and levies has often been seen as an answer. Of course, discussion, in particular in the United States has demonstrated that the use of technical access and control mechanisms can also upset the balance struck by the legislature between what is protected and what is not, as well as between which uses with regard to protected material are permitted and which are not.

Yet another issue is to what extent intermediaries, i.e. access providers and providers of other Internet-related services (such as hosting, caching, offering of portal services) should be held liable for acts of infringement committed by the users of such services. It should be noted that in the European Union, the fundamental rules regarding liability of intermediaries have now been laid down in Art. 12 et seq. of the EU Directive 2000/31/EC of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce).7 This includes the distinction to be made between liability in the sense of an obligation to pay damages, and an obligation to stop a particular infringing activity or state of affairs. Since the Directive only contains the guiding principles, particular attention will have to be given to the formulation of details.8

2.3. Remuneration for private copy

It should be noted that there is still no general agreement as to whether or not (and if so, to what extent) a claim for remuneration is an appropriate answer to compensate for purported losses due to private analogue copying.9 In addition, the subject of private copying seems to be more and more closely related to the question of digital copying due to the increasing importance of the latter. Because of this, the question has to be seen together with any levy on digital recording material (such as re-writable CD-ROMs) and digital recording hardware (such as CD-burners).

2.4. Technical measures and access to works

Due to digital and networking technology, the copies needed for end-use of protected subject matter are to an increasing extent made by the end-user, and not by producers. In addition, the new technology enables anyone to make additional copies at virtually no cost without any loss in quality. Furthermore, such copies may easily be distributed over the Internet. In a way, this development already began with the advent of reprography and home taping.

Hence, copyright extends into the private sphere, which is both difficult to control and protected by privacy. From the point of view of rights holders, this creates the need for technical protection devices, which control both access and copying. However, such technical protection devices may be circumvented. Accordingly, there is a need for legal protection against the circumvention of legitimate protection devices. This is all the more true given that due to the distribution facilities of the Internet, circumvention may easily become a mass phenomenon. However, there are several problems associated with this approach.

Firstly, already in and by itself, technical protection may lead to overprotection, if it is not bound by the limits of the exclusive rights. There is indeed a certain danger that private “self-help” may overrule the balanced approach which copyright law adopts by balancing proprietary and non-proprietary interests, mainly by way of formulating exceptions to the broadly formulated exclusive rights.10

Secondly, from this the question arises whether legal protection against circumvention should only aim at acts of circumvention, or whether it should likewise target devices, which may be used for circumvention. The EU Directive on Copyright in the Information Society now requires protection against both. Yet, there is the additional question of how to delimitate illegal circumvention devices from multi-purpose devices, i.e. devices which primarily serve legitimate purposes but which may also be used for illegal circumvention.

This then leads to a third problem, because even if only designed to overcome a particular technical protection, a circumvention device may also be used in order to gain access to material which is not protected by copyright law, and for uses which are permitted by law. Since it does not seem likely that the present technology is able to distinguish between these scenarios, a broad legal protection against circumventing devices risks very much being too broad and blocking access too much.

These problems should be given special attention in particular in implementing the EU Directive on Copyright in the Information Society.11 Another issue to be addressed in this respect is to find out to what extent legal protection against circumvention devices should depend on the availability and actual use of systems, which allow for individual billing of single use transactions.

2.5. Copyright contract law

In view of the importance of digital exploitation of protected subject matter, it is essential to determine who owns the digital exploitation rights. This problem seems to be of particular importance regarding “old” exploitation contracts, which could not foresee the numerous new exploitation possibilities opened up by digital and networking technology. Theoretically speaking, the problem is one of “control” (i.e., who owns the rights and can therefore use them in order to decide how to satisfy a market demand), and one of “participation” (i.e., who is entitled to the proceeds of exploitation in digital form). Needless to say, the answer to this issue depends to a large extent on national philosophies and practices.

In order to secure both control and participation for initial authors, some national courts have reserved digital exploitation rights for the initial authors, in spite of broad transfers, e.g. of the reproduction right, made in old contracts.12 Similarly, for example the German Copyright Act expressly declares void any transfer of rights regarding future uses which had been technically unknown and economically unimportant at the time the contract had been concluded.13

As regards new contracts, the parties are, of course, free to negotiate digital rights within the limits set by European and national antitrust law and legislation on unfair contracts and unfair trade practices. In this respect, it should be noted that in order to protect the author as the weaker part in copyright negotiations, e.g., the German Government has proposed legislation which would guarantee authors a claim which cannot be waived for “adequate” participation in the proceeds of the exploitation of their works.14

3. EUROPEAN UNION DEVELOPMENTS15

3.1. Directive 2001/29/EC on copyright and related rights in the information society

This Directive was adopted in May 2001, after over three years of intensive negotiations, and EU member States now have until 22 December 2002 to implement it in their national laws. The main aims of the Directive are two-fold. Firstly, to harmonise within the EU core rights relevant to the protection of copyright and related rights in the ‘information society’ or digital environment, and secondly to enable the EC and its member States to ratify the 1996 WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. The main features of the Directive are as follows.

Rights covered in the Directive

The Directive requires both authors and holders of related rights (performers, phonogram and film producers, and broadcasting organisations) to be granted comprehensive reproduction rights, covering direct or indirect and temporary or permanent reproduction, by any means and in any form, and in whole or in part. Authors are also to have exclusive rights in respect of any form of communication to the public by wire or wireless means, including ‘making available’ of works in such a way that members of the public may access them from a place and at a time individually chosen by them, i.e. through ‘on-demand’ type services. This ‘making available’ or ‘on-demand’ right is also to be given to holders of related rights (complementing rights in relation to other forms of communication to the public already granted to them by Directive 92/100/EEC). In addition, the Directive requires authors to have exclusive rights of distribution, i.e. of tangible copies of their works, thus bringing about further harmonisation in this area (already addressed in earlier Directives in relation to software, databases, and related rights). The distribution right is to be exhausted only by the first lawful sale or other transfer of ownership of a copy in the EC.

Exceptions to rights

The Directive also deals with exceptions to the rights it covers. In particular, it requires all member States to exempt from reproduction rights certain temporary electronic copies whose sole purpose is to enable either the transmission of material in a network between third parties by an intermediary (as in the Internet), or the lawful use of material (e.g. in ‘browsing’). As a counterbalance to this exception, member States are, however, also required to provide for rights holders to be able to obtain injunctions against intermediaries whose services are used by third parties to infringe copyright or related rights.

Otherwise, the Directive contains an exhaustive list of exceptions to reproduction, communication or distribution rights which member States are permitted, but not obliged, to provide in national law. These relate to areas such as reprography, private use, library or archive use, use for teaching or research, use by disabled people, reporting of current events, quotation, and use for administrative or judicial purposes. Certain of these exceptions are subject to payment of ‘fair compensation’ to right owners. Member States are also required to ensure that exceptions comply with the so-called ‘three-step’ test16 of international treaties. Thus, while the Directive does not seek to harmonise exceptions completely, it sets an upper limit or ceiling to the exceptions which EC states are permitted to provide in national law.

Protection of technological measures and rights management information

The Directive requires that legal protection is given to technological measures used by rights owners to prevent or restrict the infringement of rights, both as regards the act of circumventing such measures, and the making or supply of devices, products or components intended for circumvention. However, it is recognised that the use of technological measures may conflict with the ability of users to benefit from exceptions to rights. For this reason, the Directive also provides for member States to take appropriate measures, under specified conditions, in order to ensure that benefit can still be obtained from exceptions in areas such as private copying, library or archive use and teaching or research. This power to act does not, however, apply to all the exceptions permitted by the Directive. Nor does it apply where works or other matters are made available to the public in on-demand type services under agreed contractual terms. The Directive also requires that legal protection is given against removal or alteration of electronic rights management information (RMI), or dealings in material from which RMI has been removed or altered. By RMI is meant information identifying works or other protected matter, or authors or other right owners, or about terms and conditions of use.

3.2. Directive 2000/31/EC on electronic commerce

As noted above, Directive 2001/29/EC provides that there will be no infringement of reproduction rights by intermediaries, such as Internet Service Providers (ISPs), in relation to certain temporary copies enabling transmission in a network. In contrast, Directive 2000/31/EC establishes rules on the liability of intermediaries where infringements exist, not only of copyright or related rights, but also of other laws, such as defamation, obscenity or racism. Essentially, this Directive, which is due for implementation by 17 January 2002, limits the liability of ISPs or other intermediaries for acts of transmission, caching or hosting involving infringing material, provided that they comply with certain conditions. Basically, the conditions which must be met increase depending on whether an intermediary is simply transmitting material (acting as a ‘mere conduit’), temporarily storing material as in caching, or holding material for longer periods as in hosting. Thus, for example, in the case of hosting, where the conditions are naturally stricter, intermediaries will not benefit from the limitation on liability if they have knowledge or should be aware of infringing material and fail to act expeditiously on this by removing or disabling access to the material. However, provided that the different conditions applying to transmission, caching and hosting are met, liability is limited to the possibility of injunctive action requiring the intermediary to terminate or prevent an infringement. The Directive also requires member States to ensure that intermediaries are under no general obligation to monitor third party content for infringing activity.

3.3. Counterfeiting and piracy

Last November, the European Commission issued a Communication following-up on its 1998 Green Paper on counterfeiting and piracy. As has been noted in Part 2.1. of this report, the Communication indicates that there is a considerable and generally increasing level of counterfeiting and piracy activities in the European Union, which tend to be concentrated in particular areas where measures to repress these activities are less than in others. The Communication therefore envisages that, as a matter or urgency, the Commission will submit a proposal for a Directive on the enforcement of intellectual property rights, addressing such matters as confiscation of equipment, assets and profits; civil measures and procedures as regards searching, seizure and proof; criteria for calculating damages; and administrative cooperation on enforcement matters both among the member States and between them and the Commission. Among other urgent measures envisaged in the Communication are training and exchange of law enforcement officials; stepping up training and assistance for countries applying to join the European Union in combating counterfeiting and piracy; increasing public awareness and education; and defining a methodology for collecting, analysing and comparing data on counterfeiting and piracy.

3.4. Collective management of rights

Following on from their 1995 Green Paper on Copyright and Related Rights in the Information Society, and subsequent discussions at conferences in Vienna (1998) and Strasbourg (July 2000), the European Commission held a two-day public hearing on collective management of rights in Brussels on 13 and 14 November 2000. A number of issues have been raised, but the Commission has yet to reach conclusions on whether any harmonisation in this field at EC level is needed, and, if so, what form this should take.

3.5. Evaluation of existing Directives in the field of copyright and related rights

In April 2000, the European Commission submitted a report on the implementation and effects of Directive 91/250/EEC on the legal protection of computer programs, which concluded that this Directive is operating satisfactorily at present. Reports on the operation of other Directives are due to follow. The Commission is also in the process of finalising reports on public lending rights, which were harmonised to a limited degree by Directive 92/100/EEC, and on film authorship, which was partially harmonised by Directives 92/100/EEC and 93/98/EEC.

4. WIPO DEVELOPMENTS17

4.1. Results of the December 2000 Diplomatic Conference on the Protection of Audiovisual Performances18

In December 1996, two new treaties were adopted in order to adjust the international protection of copyright and neighbouring rights to the needs of the information society: the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). However, the latter did not extend the protection of performers to their performances fixed in audiovisual fixations. Instead, the 1996 Diplomatic Conference adopted a resolution calling for a future protocol to the WPPT concerning audiovisual performances.

In December 2000, a new Diplomatic Conference was convened with the task of negotiating an international instrument on the protection of audiovisual performances. In spite of substantial work by the different delegations, the conference ended with no final agreement and no new instrument was adopted. Only a provisional agreement could be reached on 19 out of 20 Articles.

According to the provisional agreement, a number of questions were solved along the lines of the WPPT provisions: the rights regarding unfixed performances, the right of reproduction, the right of distribution, the right of making available on the Internet, the limitations and exceptions, the term of protection, the obligations concerning technological measures as well as rights management information, the absence of formalities and the obligations of the contracting parties to provide for the enforcement of rights. On some other issues (legal form and title of the instrument, definition of the scope of protection and right of broadcasting and communication to the public) an agreement was also found without too many difficulties. The main controversies were focused on the following questions: beneficiaries of the protection, national treatment, moral rights, application in time and transfer of rights to the producer, the last point being the one which caused the failure of the conference. No consensus could be reached on the question of contracting parties being obliged to recognise transfers of performers' rights to producers made under the law of other contracting parties, in particular as to whether such recognition should not only extend to voluntary transfers under contract but also to transfers by statutory law.

Noting that the result of the Conference was only a provisional agreement, the participants adopted a resolution recommending to the Assemblies of WIPO member States - to re-convene the Diplomatic Conference later to discuss the outstanding issues. The September 2001 session of the WIPO Assemblies concluded that a decision to re-convene the diplomatic conference would be premature at this stage, but the matter remains open for further discussion in WIPO.

4.2. Work of the WIPO Standing Committee on Copyright and Related Rights19

The WIPO Standing Committee on Copyright and Related Rights has resumed its work on the protection of databases and the rights of broadcasting organisations at its fifth meeting in May 2001. With regard to the protection of databases, a study has been commissioned on the economic impact and consequences of database protection, especially in developing and least developed countries. On the topic of the protection of broadcasting organisations, most delegations agreed on the principle that the existing framework at international level should be updated and improved and some new proposals were presented. During the discussion, several questions were debated in a general way: the object of protection and definitions, beneficiaries of protection and national treatment, rights of broadcasting organisations, obligations on technological measures and application in time. The Standing Committee decided that the discussion would continue and that broadcasters’ rights would be the main point on the agenda of the next meeting (26-30 November 2001). A number of delegations have presented a proposal, many of them in treaty language (among them Switzerland). The Delegation of the European Community reported that the member States had been working on an EC proposal about broadcasters’ rights but it could not be finalised in time for the May meeting. Therefore, the Standing Committee extended its invitations for delegations to submit additional proposals preferably in treaty language before October 2001. The EC submitted a proposal formulated in treaty language in September 2001 which aims to give further impulse to the ongoing WIPO work.20

4.3. Prospects for the entry into force of the 1996 WIPO treaties

The WCT and the WPPT both require 30 ratifications in order to enter into force. The status on 15 October 200121 was that 28 States have ratified the WCT and 25 States the WPPT so that it seems likely that the treaties will enter into force in the near future. The new EC Directive on the harmonisation of certain aspects of copyright and related rights in the information society entered into force on 22 June 2001 and member States have to comply with it before 22 December 2002. Since complying with the Directive means also being in a position to ratify the WCT and the WPPT it also seems likely that the EU and its members will soon ratify these treaties.

5. CONCLUSIONS

The Panel does not feel that it is necessary to recommend, at this stage, any specific action by the Council of Europe in this field, particularly bearing in mind that the Committee of Ministers has just adopted the Recommendation on measures to protect copyright and neighbouring rights and combat piracy, especially in the digital environment (Rec (2001) 7). The Panel will continue to study developments in the field and consider whether any specific Council of Europe action may be desirable at some future stage.

The Panel would, however, like to urge all member States to consider approving the draft Recommendation on measures to enhance the protection of the neighbouring rights of broadcasting organisations. Broadcasting organisations face urgent piracy problems, as recognised by the MM-S-PR when preparing the draft. Therefore, the adoption of the draft Recommendation should not be delayed, bearing in mind that it reflects a common pan-European approach to the issue and appears to have much in common with proposals currently on the table in WIPO.


1 Sections 2.2. – 2.5. were drafted by Prof. Dr. Th. DREIER, Director, Institute for Information Law, University of Karlsruhe, Germany (e-mail: dreier@ira.uka.de ).

2 COM (2000) 789. See http://europa.eu.int/comm/internal_market/en/indprop/counterf.htm.

3 Information can be found in the EU progress reports on enlargement, see http://www.europa.eu.int/comm/enlargement

4 See for example IFPI’s 2001 Music Piracy Report, http://www.ifpi.org and information on the International Intellectual Property Alliance’s website, http://www.iipa.com.

5 See also Recommendation (2001) 7 on measures to protect copyright and neighbouring rights and combat piracy, especially in the digital environment.

6 OJ EU No. L 167 of 22 June 2001, pp. 10 et seq. – See also infra, part 3 of this Report.

7 OJ EU No. L 178 of 17 July 2000, pp. 1 et seq.

8 See also chapter 3 of this Report.

9 For the German example with such a claim for remuneration, sSee the 2nd Report of the German Government on the development of the remuneration according to Secs. 54 et seq. of the German Copyright Act of 5 July 2000, http://www.bmj.bund.de/ggv/bervgint.pdf.

10 Similar concerns have been raised, mainly in the United States, regarding “private legislation” by way of restrictive use conditions.

11 See also infra, chapter 3.

12 See, e.g. the decisions in the so-called journalists’ cases in France (Plurimédia, Tribunal de grande instance de Strasbourg, 3 February 1998, Cour d’Appel de Colmar, 15 September 1998; Le Figaro, Tribunal de grande instance Paris, 14 April 1999; Le Progrès, Tribunal de grande instance Lyon, 21 July 1999) and in Belgium (Central Station, Tribunal de première instance de Bruxelles, 16 October 1996, Cour d’appel de Bruxelles, 28 October 1997).

13 § 31 (4) of the German Copyright Act of 1965.

14 Entwurf eines Gesetzes zur Stärkung der vertraglichen Stellung von Urhebern und ausübenden Künstlern of May 30, 2001; http://www.bmj.bund.de/ggv/urhebver.pdf. - The proposal is not limited to digital rights, but covers any exploitation, i.e. both in analogue and digital form. The proposal has, however, met with fierce opposition from the producers side, especially, since if adopted as proposed, it would have quite a substantial retroactive effect. - A documentation regarding the discussion of this proposal can be found on the website of the Munich Institute for Copyright and Media Law, http://www.urheberrecht.org/UrhGE-2000/.

15 Drafted by Mr Roger Knights, Assistant Director, Copyright Directorate, The Patent Office, United Kingdom.

16 Requiring that exceptions are applied only ‘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 right holder’.


17 Drafted by Mrs Catherine Mettraux, Legal Officer at the Copyright and Neighbouring Rights Department, Swiss Federal Institute of Intellectual Property, Berne.

18 For the different documents and proposals related to the diplomatic conference see http://www.wipo.org/
news/en/index.html?wipo_content_frame=/news/en/conferences.html
under „Past events“, then „Past meetings 2000“ and „Diplomatic Conference on the Protection of Audiovisual Performances“.

19 For the different documents see http://www.wipo.org/news/en/index.html?wipo_content_frame=/news/en/conferences.html under „Past Events“ and „Standing Committee on Copyright and Related Rights“.

20 See http://europa.eu.int/comm/internal_market/en/intprop/news/01-wipo.htm.

21 See http://www.wipo.org/treaties/docs/english/u-page31.doc.