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Strasbourg, 30 April 2004






3rd report to the CDMM on recent developments
in the field of copyright and neighbouring rights
at the European and international level


Secretariat memorandum
prepared by the
Directorate General of Human Rights


1. Introduction

1. This document contains the 3rd report of the AP-IP to the CDMM on recent developments in the field of copyright and neighbouring rights in Europe and at the international level.


2. Since the first AP-IP Report was drawn up in 2001 (cf. document AP-IP (2001) 3) and the 2nd summary report in 2003 (cf. document AP-IP (2003) 1), the following developments and problem areas in the field of copyright and neighbouring rights can be highlighted (it should be noted that most of the problem areas continue to exist since the 2nd summary report in 2003):

2.1. Enforcement of copyright and neighbouring rights in Europe

3. Intellectual property laws in Europe are not always having the desired effect. In particular, there is a lack of uniformity in the systems of sanctions and procedures. In order to provide a remedy to this situation in the EU, the European Commission has recently proposed a Directive on the enforcement of intellectual property rights (cf. paragraphs 12 and 13). It should be borne in mind that this Directive, as well as existing Directives, will be binding not only upon the old EU states but also the new ones (Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia).

3.bis Several European countries face enforcement problems connected with the administrative capacity of enforcement institutions (police, customs, public prosecutions and the courts).

2.2. Remuneration for private copying, in particular in the digital area

4. The main question is to what extent, if any, digital private copying should be exempt from exclusive rights. The second question is, if digital copying is exempt, to what extent and how should right owners be remunerated for it? A further issue is to what extent existing or available Technological Protection Measures (TPMs) should be taken into account when fixing remuneration. On the one hand, there exists a danger that users who pay for the use of copyrighted material protected by TPMs pay a second time by way of lump sum levies. On the other hand, in the foreseeable future, not all copyrighted material in digital form will be protected by TPMs. The EU-Directive 2001/29/EC on copyright in the information society leaves the matter largely up to the member States’ discretion.1 In this respect, it should be noted that great differences regarding the answers given to theses issues can be observed in the national solutions adopted by those member States which have so far implemented the EU-Directive 2001/29/EC into their national law.

2.3 The relationship between technical measures and access to protected works

5. It has by now become generally accepted that, in the digital environment, TPMs are a useful, if not necessary, means in order to protect copyrighted works against unauthorised access and use. Moreover, TPMs are a necessary component to implement working Digital Rights Management (DRM) systems. DRM systems not only enable individual transactions with regard to copyrighted subject matter in the digital field, but likewise enable a product differentiation which, by way of corresponding strategies of price discrimination, is generally said to enhance the overall public benefit. If this is accepted, then it is obvious that TPMs are themselves in need of strong legal protection against unauthorised circumvention.

6. However, there is a debate on whether legal protection against unauthorised circumvention conflicts with other public policy considerations such as freedom of expression and information. In particular, privately applied TPMs may prevent people from benefiting from copyright exceptions.

7. In the EU, this conflict has been addressed by Article 6 of the Directive 2001/29/EC, which provides for member States to take action in order to allow users to benefit from copyright exceptions where TPMs act to prevent them from doing so. However, in the case of copyrighted material which is made available to the public on-line on contractually agreed terms, TPMs and the legal protection granted to it override all exceptions and limitations.2 This is even true in the case of exceptions or limitations which protect particularly high-valued interests and rights, such as the freedom of news reporting, public discussion by way of citation and the like. However, it should be noted that although there currently is no legal obligation to do so, certain right holders have programmed TPMs in a way that users can at least benefit from some form of private copying. Also, user-oriented rather than the existing object-oriented TPMs might in future provide a solution to the problem described.

2.4 Further issues related to technological developments

8. The following further issues should be mentioned:

- liability of intermediaries, such as Internet service providers;

- to what extent might search engines and hyperlinks infringe copyright laws?

- beyond private copying, to what extent should other traditional exceptions to copyright apply in the digital environment?

- how to ensure that authors and other right holders are able to obtain proper remuneration for the exploitation of their material;

- applicable law and jurisdiction in relation to Internet activities.

9. Within the EU, the issue of liability of intermediaries has by now been settled to a considerable degree on the legislative level due to the implementation of Directive 2000/31/EC on electronic commerce into the national legislations of the EU-Member-States. However, the legal status of search engines and hyperlinks has not yet been addressed at a European level. Moreover, it remains unclear to what extent intermediaries are under an obligation to communicate information about their clients in cases of alleged infringement. In addition, EC Directive 2001/29/EC does not entirely solve the situation on copyright exceptions within the EU since it does not fully harmonise these, but rather sets limits on exceptions which member States remain free to adopt or not within various categories. As far as applicable law and jurisdiction are concerned, mention should be made of the work within the EU on non-contractual obligations (Rome II) and work undertaken by WIPO. Also, after the standstill of the work by the Hague Conference on private international law on the matter, attention should be given to a parallel project currently debated at the American Law Institute (Intellectual Propety: Principles Governing Jurisdiction, Choice of Law, and Judgements in Transnational Disputes), which, if adopted, will also have its influence in Europe.

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

10. This Directive, the main features of which were described in the first report of AP-IP to CDMM, set a date for implementation of 22 December 2002. At the time of writing (April 2004) seven of the existing EU states (Austria, Denmark, Germany, Greece, Ireland, Italy and UK) had implemented the Directive, as had some of the countries joining the EU on 1 May 2004 (Cyprus, the Czech Republic, Hungary, Latvia, Lithuania, Malta, Poland, the Slovak Republic and Slovenia), but other states had yet to complete the process.

3.2 European Commission report on the public lending provisions of Directive 92/100/EEC

11. The Commission has also submitted a report [COM (2002) 502 final] on those aspects of Directive 92/100/EEC concerned with non-profit lending of copyright material to the public by libraries or the like. The Directive aimed at limited harmonisation in this area, leaving much flexibility to accommodate different national cultural traditions. In essence, it offers a choice between granting right holders exclusive rights to control lending, or simply rights to remuneration for this. In addition, some kinds of establishments may be exempted from any obligation for lending. The report shows that national differences remain, and that the EU states divide roughly evenly between taking mainly an exclusive right, or mainly a remuneration right, approach. The Commission is concerned about whether the lending provisions are operating satisfactorily in all EU states, and has indicated that it intends to continue to monitor the situation and also to examine new developments in library services, with a view to assessing the need for further action.

3.3 Proposed Directive on the enforcement of intellectual property rights

12. In January 2003, the Commission submitted a proposal for a Directive on measures and procedures for the enforcement of intellectual property rights, which has since been discussed and agreed by the EU institutions and remained only to be formally adopted at the time of writing (April 2004). The Directive (as amended by the EU institutions) would apply to the infringement of any intellectual property rights provided by EC law and/or the national laws of member states. Moreover, although some of its provisions would apply only to infringements on a commercial scale, member states would have the option of going beyond this in national law. However, in contrast to the original proposal, the Directive as amended does not address criminal sanctions, and a provision relating to technical protection measures has been removed.

13. The Directive (as amended) would require member states to provide copyright presumptions (as in the Berne Convention) and extend these in a similar manner to related rights, and permit licensees, collecting societies and professional defence bodies , as well as right holders, to commence infringement proceedings. There are also provisions on judicial authorities ordering the disclosure of evidence; on protecting evidence; on provisional measures aimed at preventing an infringement or its continuation (including the possibility of action against intermediaries whose services are used by a third party to infringe rights); on seizure of suspected infringing goods; on blocking of assets; and on judicial authorities awarding a right to information about an infringement. In addition, the Directive addresses measures that can be ordered as a result of a decision on a case, including the removal and destruction of infringing goods, final injunctions, damages and legal costs, and the publication of court decisions.

3.4 European Commission Communication on the management of rights

14. The Commission has recently (16 April 2004) issued a Communication [COM (2004) 261] on the management of copyright and related rights, the main conclusion of which is that action is required at EU level on certain aspects of the collective management of rights, in particular the governance of collecting societies. The Commission considers that it is desirable to establish common rules on matters such as the establishment and status of collecting societies, their relationships with right holders and with users, and external control of collecting societies. As regards users, it is felt that collecting societies should be obliged to publish tariffs and to grant licences on appropriate and reasonable conditions, and that users should have the ability to contest tariffs. With respect to right holders, it is considered that collecting societies should operate under the principles of non-discrimination, transparency and accountability, and should offer a reasonable degree of flexibility regarding the terms under which they acquire rights from right holders, especially as regards the scope and duration of the mandate sought. In relation to the external control of collecting societies, it is considered desirable to ensure that specific bodies (such as specialised tribunals, administrative authorities or arbitration boards) are available in all EU states, and to establish common rules on the competencies, composition, and binding or non-binding nature of the decisions of such bodies. The Commission now intends to prepare a proposal for EU legislation in the areas referred to above, taking account of the views expressed in a public consultation which has just been initiated.3

15. The Communication also discusses three areas in which it is concluded that no action is necessary at the EU level, at least for the time being, namely EU-wide licensing of rights, digital rights management (DRM) systems, and individual management of rights. However, the Commission intends to keep these matters under review in the light of national and market developments.

3.5 Other matters

16. A further Communication is expected from the Commission which will review the copyright framework in the EU established by Directives 91/250, 92/100, 93/98 & 96/9. In addition, the Commission is in the process of finalising a report on the operation of Directive 96/9 on databases. Four cases are pending before the European Court of Justice concerning the sui generis protection given to non-original databases by this Directive, all relating to information on sports events (time, place and participants), in three cases on football matches and in the other on horse races.


4.1 Entry into force of WCT and WPPT

17. The 1996 WIPO Treaties both require 30 ratifications in order to enter into force. The WIPO Copyright Treaty reached this number and entered into force on 6 March 2002 and the WIPO Performances and Phonograms Treaty on 20 May 2002. For the WCT, the status on 27 January 2004 was of 45 ratifications and for the WPPT the status on 15 October 2003 was of 42 ratifications. This wide geographical area of application will be further increased when the European Community and its member States will ratify them too.

18. To document the different possibilities of implementing the treaties, the WIPO Secretariat has put together a survey of the different national provisions4.

4.2 The protection of audiovisual performances

19. The 1996 WIPO Treaties do not protect performers with regard to the audiovisual fixation of their performances. The Diplomatic Conference of 2000 was convened to remedy this situation but there was no final agreement and no new instrument could be adopted. A provisional agreement was reached on 19 out of 20 articles but no consensus could be found on the question of the transfer of rights. During the following years, it seemed that no way out of this deadlock could be found. On 6 and 7 November 2003, the WIPO Secretariat organised an Ad hoc Informal Meeting on the Protection of Audiovisual Performances. Several documents were presented – among them a survey on national legislations on the protection of audiovisual performances and several studies5. During the informal discussion, the representative of the American Screen Actors’ Guild informed about the new position of her organisation: they are now in favour of the adoption of the text of the audiovisual treaty as agreed upon in December 2000 with no provision about the transfer of rights. This change in point of view brings some hope about a possible compromise between both sides of the Atlantic but it is still unclear as to how this will influence the official position of the USA.

4.3 The protection of non-original databases

20. The WIPO Standing Committee on Copyright and Related Rights (SCCR) has pursued its discussions on the protection on non-original databases. Several studies on the economic impact and consequences of database protection have been commissioned by the WIPO Secretariat6, which has also updated its summary on existing legislation7. The European Community and its members States have submitted a document underlining their positive experience with their database legislation and the need for an international protection in that field. The delegation of the USA has informed about the discussion on databases protection at national level. At its ninth session in June 2003, the SCCR decided to keep the item on the agenda but without discussing it necessarily at each session.

4.4 The protection of broadcasting organisations

21. The protection of broadcasting organisations has been the main point on the agenda of the SCCR since the first AP-IP Report was drawn up in 2001. Several proposals have been presented by many delegations8 and two documents on technical questions have been prepared by the Secretariat9. Even if most delegations agree on the principle that the existing international framework should be updated there are many discussions on a number of items. The subjects debated can be roughly divided into two categories: on the one hand, the questions concerning the object of protection and, on the other hand, the scope of rights.

22. One of the most debated topics is whether webcasters should be given the same protection as traditional broadcasting organisations. This question has been triggered in particular by the proposal of the USA10. The European Community has made a more nuanced proposal: The definition of broadcasting should only include “simulcasting” by a broadcasting organisation of its own broadcast but no other forms of webcasting11.

23. Another concern expressed by many delegations is about not giving to broadcasting organisations a protection which goes further than the protection granted to the other holders of copyrights and related rights and especially to make clear that the protection of broadcasters can only extend to signal and not to content.

24. At its tenth session on 3-5 November 2003, the SCCR gave a mandate to the Chairman to prepare, in cooperation with the Secretariat, a consolidated text with explanatory comments, based on the different proposals submitted12. It was also decided that at the eleventh session in June 2004, the discussions would be based on this consolidated text and that the SCCR would assess the progress of the work. In the light of those discussions and that assessment, the SCCR would then decide whether to recommend to the WIPO General Assembly in 2004 that a Diplomatic Conference be convened.

25. Many delegations have repeatedly underlined how difficult it would be to politically justify the adoption of a new treaty on the protection of broadcasting organisations prior to improving the protection of audiovisual performances. Therefore, at some point in the discussion, the SCCR will also have to deal with that difficulty.

4.5 Others items discussed by the SCCR

26. The SCCR has on several occasions discussed whether new topics should be considered13. Even if they are open to discussion on new subjects, most delegations have expressed the view that the ongoing work should be completed first and that discussions on new items should not necessarily aim at new treaties.

27. Several studies have been commissioned on those other issues for review14 and at its tenth session, the SCCR encouraged the Secretariat to continue providing useful studies and discussion materials on topical questions and developments. Therefore, an item “Other issues for review” will be kept on the Agenda for the eleventh session so that the SCCR can discuss further work done by the Secretariat in respect of those issues.

28. The Secretariat has also organised on the margins of the SCCR several information meetings. To be noted in particular is the Information Meeting on Digital Content for the Visually Impaired which took place in Geneva on 3 November 200315.

4.6 Enforcement

29. The newly established Advisory Committee on Enforcement held its first session in Geneva from 11 to 13 June 2003. It will continue and further develop the work carried out by previous Advisory Committees as well as the Consultation Meeting on Enforcement held in Geneva from 11 to 13 September 2002. Its mandate excludes norm setting and is limited to technical assistance and coordination. It will focus on the following objectives: coordinating with certain organisations and the private sector to combat counterfeiting and piracy activities; public education; assistance; coordination to undertake national and regional training programmes for all relevant stakeholders and the exchange of information on enforcement issues through the establishment of an Electronic Forum16. It is foreseen that its next session should take place in 2004.

30. Following the Consultation Meeting on Enforcement held in September 2002, the WIPO Secretariat has established an Electronic Forum on Intellectual Property Enforcement Issues and Strategies (IPEIS). It facilitates the preparation of documents and the collection of information by the Secretariat allowing participants to comment on preliminary drafts of documents and to respond to requests for information (surveys, questionnaires, etc.) posted on the Forum by the Secretariat. It also provides a forum whereby enforcement and intellectual property office officials can share information as to their respective national experiences17.

4.7 Traditional cultural expressions (folklore)

31. In October 2000, the WIPO General Assembly established the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the “IGC”) as an international forum for debate and dialogue concerning the interplay between intellectual property and traditional knowledge, genetic resources and traditional cultural expressions (folklore).

32. The IGC has met on several occasions since 2001, the sixth session having taken place from 15 to 19 March 2004. A number of documents and studies have been established or commissioned by the Secretariat18.


33. On 23 April 2004, World Book and Copyright Day were celebrated by UNESCO. On 26 April 2004, the World Intellectual Property Day, promoted by WIPO, was celebrated. It is important to support every action which is directed at raising public awareness in the field of intellectual property.

1 Art. 5 (2) (a), which only mandates that if private copying on paper is permitted, right holders must „receive fair compensation”.

2 Article 6 (4) (4).

3 See also the recent European Parliament resolution on a Community framework for collective management societies in the field of copyright and neighboring rights (2002/2274(INI)), adopted on 15 January 2004.

4 See document SCCR/9/6 and SCCR/9/6 Add. 1 (all WIPO documents can be found on http://www.wipo.int ).

5 See documents AVP/IM/03/2 to AVP/IM/03/4F.

6 See documents SCCR/7/2 to SCCR/7/6 and SCCR/8/6.

7 See document SCCR/8/3 and DB/IM/2.

8 The most recent comparison of proposals can be found in document SCCR/10/3 and SCCR/10/3 Corr.

9 See documents SCCR/7/8 and SCCR/8/INF/1.

10 See the revised proposal in treaty language submitted by the USA in document SCCR/9/4 Rev.

11 See the proposal in document SCCR/9/12 which updates the earlier proposal in treaty language submitted by the European Community and its Members States in document SCCR/6/2.

12 See document SCCR/11/3.

13 For a list of possible subjects for future review see document SCCR/8/2.

14 See document SCCR/9/7 (WIPO Study on limitations and exceptions of copyright and related rights in the digital environment, prepared by Prof. Sam Ricketson), SCCR/10/2 (Current developments in the field of digital rights management, prepared by Mr. Jeffrey P. Cunard, Keith Hill and Chris Barlas) and SCCR/10/4 (WIPO Guide on surveying the economic contribution of the copyright-bases industries, prepared by the Secretariat).

15 For further information see: http://www.wipo.int/documents/en/meetings/2003/digvi_im/digvi_im_03_1rev1.htm .

16 See the documents of the meeting: WIPO/ACE/1/1 to WIPO/ACE/1/7 Rev.

17 For further information see the following website: http://www.wipo.int/ipeis/en/ .

18 For further information on the activities and publications of WIPO, see its quite comprehensive website: http://www.wipo.int/tk/en/index.html