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COUNCIL OF EUROPE
COMMITTEE OF MINISTERS

______

RECOMMENDATION No. R (94) 3

OF THE COMMITTEE OF MINISTERS TO MEMBER STATES
ON THE PROMOTION OF EDUCATION AND AWARENESS
IN THE AREA OF COPYRIGHT AND NEIGHBOURING RIGHTS
CONCERNING CREATIVITY

(Adopted by the Committee of Ministers on 5 April 1994,
at the 511th meeting of the Ministers' Deputies)

The Committee of Ministers, under the terms of Article 15.b of the Statute of the Council of Europe,

Considering that the aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress;

Aware of the inextricable links which exist between human rights, on the one hand, and cultural policy on the other, in particular the freedom which must be guaranteed to authors and other contributors to creation and the dissemination of culture to express themselves freely in different forms and contexts, and to communicate to the public the fruits of their creative endeavours;

Highlighting in this regard the relevance of Articles 9 and 10 of the European Convention on Human Rights which guarantee freedom of thought and expression respectively, as well as Article 27 of the Universal Declaration of Human Rights which specifically addresses the fundamental rights of authors and other contributors to creation and the dissemination of culture;

Reaffirming also the major contribution which authors and other contributors to creation and the dissemination of culture make to the development of the cultural life of a democracy and the economic development of a nation, and the fact that the works which they produce form a valuable cultural and economic asset such that the encouragement and rewarding of their activities is a matter of public interest;

Aware of the need not to restrict access by the public to works and other protected contributions;

Conscious, however, of the need to create greater awareness among the public in general and lawyers in particular (judges, prosecutors, legal practitioners, law professors, law students, etc.) of the fact that access to and use of works and other protected contributions can only be granted on the basis of respect for the rights of the right holders concerned, and that failure to observe this obligation constitutes an illicit act which prejudices the lawful rights and interests of authors and other contributors to creation and the dissemination of culture and, in the long term, literary and artistic creation and the development of society as a whole;

Convinced that one major means for achieving this is through the deployment of efforts at educating and creating awareness among the public at large of the need for the latter to recognise that authors and other contributors to creation and the dissemination of culture have legitimate rights and interests in respect of their works and other protected contributions,

Recommends the governments of member states:

a. promote, having due regard to the principles set out hereafter, education and awareness among the public in general and lawyers in particular (judges, prosecutors, legal practitioners, law professors, law students, etc.) of the need to respect copyright and neighbouring rights granted to authors and other contributors in respect of works and other protected contributions (in particular literary and artistic works, musical works, phonograms, audiovisual works, broadcasts and computer software);

b. encourage the representative bodies of the various categories of right holders as well as collecting societies to participate, wherever feasible, in co-operation with public authorities, in this initiative, in particular through the preparation and dissemination of relevant literature, audiovisual material, etc., designed to increase awareness of the importance of respecting copyright and neighbouring rights concerning creativity and of the economic and cultural consequences stemming from a failure to do so.

Principles

Principle 1

At the level of university education, particular consideration should be given to promoting the teaching of copyright and law on neighbouring rights.

For this purpose, the member states should encourage the development of regular specific courses within law faculties on the principles and practice of copyright and neighbouring rights, particularly in the perspective of educating a new generation of jurists knowledgeable of the need to protect the rights of authors and all other contributors to creation and the dissemination of culture. In addition, consideration should be given to the possibility of referring to the rights of creators and other contributors to creation and the dissemination of culture within the framework of other relevant private law courses as well as courses on constitutional law and civil liberties.

Outside the framework of legal education, encouragement should also be given to the development of education on copyright and neighbouring rights within other appropriate disciplines, in particular economics, computer science, arts and the humanities, and media studies.

Principle 2

In addition to initiatives within the framework of educational curricula, member states should encourage greater awareness among the members of the legal profession, customs authorities, law enforcement authorities, etc., of the need to ensure respect for the lawful rights and interests of authors and other contributors to creation and the dissemination of culture.

For this purpose, use could be made of existing facilities such as the continuing training courses organised for the professional sectors referred to above so as to highlight the serious prejudice which is caused to creators and other contributors to creation and the dissemination of culture, as well as to society in general, by unlawful activities such as piracy (that is, mainly the unauthorised duplication, distribution or communication to the public for commercial purposes of works, contributions and performances protected by copyright and neighbouring rights), in particular sound and audiovisual piracy, computer software piracy as well as unauthorised reprography.

Where such training facilities do not exist, consideration could be given to their possible introduction.

Principle 3

Member states should encourage the relevant professional bodies to develop literature, audiovisual material, etc., which could be used in educational curricula as well as in training courses to highlight the importance of ensuring respect for the rights of creators and other contributors to creation and the dissemination of culture. Material of this nature should also seek to emphasise the character of the harm which accompanies the commission of unlawful activities such as piracy and unauthorised reprography.

Principle 4

Member states should endeavour to create greater awareness among the public of the importance of ensuring respect for the rights and interests of authors and other contributors to creation and the dissemination of culture. For this purpose, consideration should be given to the promotion of information and awareness campaigns highlighting:

- the importance of the rights attaching to creators and other contributors to creation and the dissemination of culture for the cultural and economic development of society, as well as the prejudice which infringement of these rights causes to right holders, to literary and artistic creation and, in the final analysis, to the public itself;

- the unlawful nature of activities which undermine those rights, in particular piracy and unauthorised reprography. Particular attention should be accorded not only to sound and audiovisual piracy but also to computer software piracy.

Principle 5

Member states should endeavour to promote awareness at all relevant stages of the educational process of the importance of respecting the rights of those who are at the origin of creative works, including computer software and other protected contributions.

For this purpose, member states should endeavour to ensure that the learning process is accompanied by efforts at instilling an appreciation on the part of students of the special role performed by authors, composers, audiovisual producers, visual artists and photographers, performers, phonogram producers, broadcasting organisations, etc., in the cultural and economic development of society.

Principle 6

Member states should give consideration to the possibility of introducing, in the framework of educational and professional training programmes, courses which are adapted to the age and interests of those targeted and which would be intended to promote awareness of:

a. the need to regard authors and other contributors to creation and the dissemination of culture as workers dependent on the revenue acquired through the use and public exploitation of their works and other protected contributions;

b. the value of copyright industries within the framework of the domestic economy and the labour market;

c. the legitimacy of those economic and moral rights which are guaranteed to authors and other contributors to creation and the dissemination of culture, in particular against the background of the cultural and economic contribution which they make to society;

d. the illegality of certain types of activity which prejudice the rights and interests of creators and other contributors to creation and the dissemination of culture, in particular sound and audiovisual piracy as well as computer software piracy, and unauthorised reprography.

* * *

Explanatory memorandum

Introduction

1. The development of information and telecommunications technologies has greatly facilitated access by the general public to literary and artistic works, and in particular audiovisual works. By way of illustration:

- techniques enabling individual reception of television programmes - in particular those delivered by satellite television and cable distribution - have allowed increasingly large segments of the public to have access to a far greater number of audiovisual works, both domestic and foreign;

- techniques allowing for the reproduction of sound and audiovisual works are making it increasingly simple to copy privately phonograms and videograms. The end results are excellent from the point of view of sound and visual quality;

- computer techniques make the use of any kind of computer software by the general public more and more accessible; in particular, computers make it possible for individuals to have access to electronic publishing, multimedia environments and sampling of works;

- reprographic techniques allow for quick and high-quality photocopies of printed material for personal use.

2. At the same time, however, the development of such techniques has also increased the possibilities for unlawful access and exploitation of works and other contributions protected by intellectual property law:

- illicit access to encrypted television services;
- piracy of phonograms and videograms;
- computer piracy, in particular computer software piracy;
- unlawful reproduction of works and other protected contributions.

3. The Council of Europe has always taken the view that it is highly desirable to avoid restricting the opportunities which the public has to benefit from technological developments so as to allow access to creative works - in particular, audiovisual works. However, the Council of Europe has, at the same time, constantly stressed the need to protect the legitimate rights and interests of the right holders concerned.

4. Authors and other contributors to creation and the dissemination of culture make a major contribution to the cultural life of a democratic society, as well as to the economic development of a nation. Their works and other contributions are so important at the cultural and economic level that encouraging and rewarding creation is in fact a matter of public interest. It is thus felt important to develop a greater awareness among users of such works and contributions of the fact that the latter constitute the patrimony of right holders and, as such, access to works and other contributions must only take place on the basis of respect for the rights and legitimate interests of those concerned. Failure to respect this obligation gives rise to an unlawful activity which prejudices the rights of authors and other contributors to creation and the dissemination of culture and, in the long term, literary and artistic creation.

5. Within the Council of Europe, the protection of the respective interests of right holders and of the public has been guaranteed against the backdrop of certain provisions of the European Convention on Human Rights as well as of the Universal Declaration of Human Rights. Articles 9 and 10 of the Convention guarantee, respectively, the freedom of thought and the freedom of expression. Article 10 in particular enshrines the freedom to communicate (and receive) information and ideas. Article 27 of the Universal Declaration, for its part, enshrines the fundamental rights of authors and other contributors to creation and the dissemination of culture.1

6. More precisely, the Parliamentary Assembly and the Committee of Ministers of the Council of Europe have stressed in the framework of several legal instruments the importance of copyright and neighbouring rights from the perspective of human rights, culture and the economy, and have provided guidelines for the protection of such rights vis--vis, in particular, various types of uses which have been made possible through technological development.2

7. The specific issue of promoting education and heightening awareness in the area of copyright and neighbouring rights concerning creativity has been examined in detail within the framework of the Committee of Legal Experts in the Media Field (MM-JU).

8. In November 1992, the Committee of Legal Experts in the Media Field deemed it necessary, without however underestimating the importance of the work being conducted within other international bodies designed to stimulate and promote greater public awareness of these issues, to launch an initiative at the European level within the framework of the Council of Europe. The Committee of Legal Experts in the Media Field stressed that the European region is characterised by a highly significant volume of protected works and other contributions which can be used by means of various techniques. In addition, it was believed that the Council of Europe, by virtue of its competence in the area of, inter alia, human rights and culture as well as its broad geographic scope reflected in its membership, was a body particularly well-suited to elaborate a legal instrument in this area.

9. The present instrument, addressed to the governments of the member states of the Council of Europe, is designed to:

a. highlight the importance of copyright and neighbouring rights from the perspective of human rights, culture and the economy;

b. promote education and awareness of the need to respect copyright and neighbouring rights granted to authors and other contributors in respect of works and other protected contributions;

c. in so doing, to encourage governments to take into consideration the principles set out in the recommendation, in particular:

- the introduction, at different levels of education (primary and secondary schooling, universities, professional training), of courses intended to provide instruction in the rationale for and basic principles governing protection of copyright and neighbouring rights and to create awareness of the need to ensure protection in this area. In particular, such courses should highlight concrete examples of unlawful activities (especially piracy) which cause serious prejudice to copyright and neighbouring rights holders. This action should be conducted particularly in the perspective of educating a new generation of lawyers knowledgeable of the need to protect the rights of authors and all other contributors to creation and the dissemination of culture;

- the encouragement of representative bodies of the different categories of right holders to contribute to this initiative, in particular through the preparation and circulation of relevant literature, audiovisual material, etc., so as to increase awareness of the consequences stemming from the non-respect of copyright and neighbouring rights.

Principles

Principle 1

10. It should be recalled that in November 1992, the Committee of Legal Experts in the Media Field stressed, inter alia, the need to promote training and education in the area of copyright and neighbouring rights at the national level. Several experts confirmed the importance attached to the development of education and training in this area, in particular for the benefit of members of the legal profession as well as the authorities responsible for implementing legislation on the protection of right holders.

11. Principle 1 stresses the desirability of promoting the teaching of intellectual property law at the university level, particularly in law faculties. As Principle 1 indicates, legal curricula are not the only vehicle for providing instruction in copyright and neighbouring rights. The basic principles governing the protection of right holders may also be communicated in the framework of other courses such as economics, computer science, arts and humanities as well as media studies.

12. While it is unlikely that the former disciplines can be used to impart detailed instruction on the law and practice of copyright and neighbouring rights, they can nevertheless be appropriate fora for emphasising other important aspects of copyright and neighbouring rights as well as of creativity. What is important is that students at the university level, depending on the nature of the courses which they follow, acquire a greater understanding of the role of copyright and neighbouring rights within society.

13. Principle 1 makes specific reference to the possibility of using courses of a public law nature for the purposes of increasing awareness of the rights of those who are at the origin of artistic and literary creativity. It is felt that such courses could usefully be adapted so as to emphasise the human rights aspects of the creation and the dissemination of culture, so as to confirm in the minds of students that copyright and neighbouring rights are also of relevance to the relations between the state and the citizen.

Principle 2

14. The majority of member states of the Council of Europe have developed national rules and practices intended to protect copyright and neighbouring right holders, particularly from the perspective of the relevant international conventions. It should be noted that, at the present time, all the member states of the Council of Europe are parties to the Berne Convention for the Protection of Literary and Artistic Works, and a number of such states have also adhered to the Paris Act (1971) version of this convention. In addition, several member states are also parties to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome 1961), as well as to the European Agreement on the Protection of Television Broadcasts (Strasbourg 1960). The provisions of these international rules are reflected in national law and practice. However, they only become meaningful if the national implementing provisions are effectively enforced by the national authorities.

15. As noted above, under Principle 1, the Committee of Legal Experts in the Media Field has stressed the importance of continuing education and training programmes for the benefit of those who are responsible for implementing and enforcing legislation on copyright and neighbouring rights. For this reason, Principle 2 highlights the value of creating greater awareness among members of the legal profession, customs authorities and the police of the need to ensure respect for the lawful rights and interests of authors and other contributors to creation and the dissemination of culture. With this in mind, the principle recommends the provision of instruction on these matters to the professions in question, in particular via the continuing training courses which are run for the members of these professions in many member states. This principle recommends the introduction of such training facilities where they do not yet exist.

Principle 3

16. The bodies representing the various categories of right holders have been instrumental in recommending public authorities to heighten awareness of the need to respect intellectual property rights. A similar plea has also been formulated at the level of various intergovernmental organisations, in particular Unesco and the World Intellectual Property Organization (WIPO).

17. Bodies representing right holders have a crucial role to play in encouraging the implementation of the principles laid down in this recommendation. Principle 3, building on the operational part of the recommendation, encourages such bodies to develop and circulate various types of teaching aids which could help further the educational process vis--vis the protection of copyright and neighbouring rights. Such teaching aids could be developed in a way which is adapted to the needs and interests of the specific groups targeted.

18. For example, as regards public awareness campaigns, the representative bodies should give consideration to the need to produce booklets or advertisements which emphasise the unlawful nature of various types of activities such as sound and audiovisual piracy and unauthorised reprography. The unlawful nature of such activities could also be highlighted by means of pamphlets, notices, etc., made available or displayed in libraries.

19. As regards the preparation of material for use in educational establishments, it might be appropriate for the representative bodies to make available teaching aids which are sufficiently attractive in their presentation to capture the imagination of the younger members of society.

Principle 4

20. Principle 4 highlights the need to create increased awareness among the public of the important role which authors and other contributors to creation and the dissemination of culture play in regard to the cultural and economic development of society. Building on a number of the statements set out in the preamble to the text, this principle seeks to alert the public, inter alia, to the consequences resulting from non-respect of the legitimate rights and interests of authors and other contributors to creation and the dissemination of culture.

21. In particular, Principle 4 clearly indicates that violations of the rights and interests of these parties is a matter which concerns society as a whole. While authors and other contributors to creation and the dissemination of culture obviously suffer financial prejudice when their rights are not respected, the fact that the infringement of these rights will dissuade the parties from contributing to the cultural development of society must not be overlooked.

22. In brief, continuing and constant non-respect of rights will provide little incentive for the right holders to contribute to the creative process. This will result in fewer creative initiatives being undertaken and it is precisely this latter factor which could result in the cultural impoverishment of society: the public in general will no longer be able to enjoy the fruits of creative endeavours.

23. Among the public in general, as well as in certain social and professional circles, there is a marked ignorance of the serious prejudice which results from activities intended to take unlawful advantage of works and other contributions, that is to say activities which do not respect the rights of those who have contributed to bringing works into existence. Quite simply these activities constitute theft, but they are not perceived as such, or the gravity of the activities is minimised, by many individual users and even by certain professional sectors. The situation differs of course from one country to another. Nevertheless, the governments of the member states are invited to launch a concrete information and awareness campaign among the public on the need to respect the rights in question.

24. Principle 4 stresses the need to inform the public of the repercussions stemming from the non-respect of copyright and neighbouring rights. It encourages the member states to promote information in this regard, and to do so in a way which creates greater awareness among the public of these matters. The aim should be to identify clearly, in the minds of the public, authors and other contributors to creation and the dissemination of culture as parties having lawful rights and interests which deserve to be respected. In particular, information and awareness campaigns should seek to emphasise the sort of activities which cause particular prejudice to authors and other contributors to creation and the dissemination of culture, namely piracy (as defined in Principle 2), including piracy of computer software and unauthorised reprography.

Principle 5

25. Whereas Principle 4 concerns a general strategy aimed at the public in general, Principle 5 takes a more targeted approach, emphasising the development of initiatives within the framework of educational and training establishments. Principle 5 addresses the educational process in general without making a distinction in regard to the level of education in question. In fact, there is no reason why attempts could not be made even at the level of primary school education to create awareness among pupils of the need to respect the rights of those who are responsible for providing them with literature, entertainment, etc.

26. What is important is that young members of society begin at an early age to acquire an appreciation of the special role played by authors and other contributors to creation and the dissemination of culture in the cultural and economic development of society.

Principle 6

27. Principle 6 encourages the development and introduction of courses within educational and professional training curricula designed to foster an awareness of the issues listed in paragraphs a, b, c and d of this principle. It may not be necessary to introduce specific courses on the role and value of copyright and neighbouring rights in society. It might be possible to envisage the adaptation of existing courses so as to allow these various themes to be covered. For example, courses on literature and arts within the school curriculum could make reference to the different issues referred to in the principle. It is important that awareness is created throughout the period of schooling of the fact that activities which undermine the rights and interests of authors and other contributors to creation and the dissemination of culture are unlawful.


1 The links between human rights and cultural policy, in particular the rights guaranteed to those who are at the origin of creative works and other protected contributions to express themselves freely in different forms and contexts, and to communicate to the public the fruits of their creative endeavours, has also been emphasised in this context.

2 As far as the work of the Assembly is concerned, reference should be made to the following texts:
-Recommendation 926 (1981) on questions raised by cable television and by direct satellite broadcasts, paragraphs 13.ii, 17. and 22.iv;
-Recommendation 996 (1984) on Council of Europe work relating to the media, paragraph 9.b;
-Recommendation 1067 (1987) on the cultural dimension of broadcasting in Europe, paragraphs 6.d, 20.j. ii;
-Recommendation 1098 (1989) on East-West audiovisual co-operation, paragraph 16.
Furthermore, a number of recommendations adopted by the Committee of Ministers may be cited by way of illustration:
-Recommendation No. R (86) 2 on principles relating to copyright law questions in the field of television by satellite and cable;
-Recommendation No. R (88) 1 on sound and audiovisual private copying;
-Recommendation No. R (88) 2 on measures to combat piracy in the field of copyright and neighbouring rights;
-Recommendation No. R (90) 11 on principles relating to copyright law questions in the field of reprography;
-Recommendation No. R (91) 14 on the legal protection of encrypted television services.
Finally, it should be recalled that the Committee of Ministers adopted on 16 February 1994 the European Convention relating to questions on copyright law and neighbouring rights in the framework of transfrontier broadcasting by satellite.