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Directive on the harmonisation of certain aspects of copyright and related rights in the information society

The Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, commonly known as the EU Copyright Directive (EUCD) or the Information Society Directive (Infosoc), is a European Union directive in the field of copyright law, made under the internal market provisions of the Treaty of Rome. It is intended to implement the WIPO Copyright Treaty, to which the European Union is a party.

This highly controversial Directive was, at the time, the most heavily lobbied measure to pass the European Parliament. In its final form, it includes only very narrow exceptions to anti-circumvention measures and exclusive rights. As a result, it is often regarded as a victory for copyright-owning interests (publishing, film, music and major software companies) over copyright users' interests.

Many important details are not specified in the Directive, and as a result, Member States have significant freedom in certain aspects of implementation. Due to escalating public awareness of the importance of copyright legislation, the process of implementation has not been entirely predictable. The European Commission has taken proceedings in the European Court of Justice against six Member States for failure to implement the Directive within the required period (before 2002-12-22).

Definition of copyright

Articles 2–4 contain a brief definition of the property rights associated with copyright and related rights. They distinguish the "reproduction right" (Art. 2) from the right of "communication to the public" or "making available to the public" (Art. 3): the latter is specifically intended to cover publication and transmission on the internet. The two names for the right derive from the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (Arts. 8 & 10 respectively).

The right of communication to the public or making available to the public is also distinguished from the "distribution right" (Art. 4) by the fact that it is not subject to the first-sale doctrine.

Exceptions and limitations

Article 5 lists the limitations which Member States may apply to copyright and related rights. The restrictive nature of the list was one source of controversy over the directive: in principle, Member States may only apply limitations which are on the agreed list, although other exceptions and limitations which were in place on 2001-06-22 may remain in force [Art. 5(3)(o)]. There are no exceptions to copyright (classes of work which are not eligible for copyright), although many (but not all) Member States exclude laws from copyright protection.

One limitation is obligatory: transient or incidental copying as part of a network transmission or legal use. Hence internet service providers are not liable for the data they transmit, even if it infringes copyright. The other limitations are optional, with Member States choosing which they apply. All limitations must be applied in accordance with the Berne three-step test, that is in certain special cases which do not conflict with a normal exploitation of the work and which do not unreasonably prejudice the legitimate interests of the rightholder [Art. 5(5)].

Technological measures

Article 6 of the Directive provides protection for "technological measures", any technology device or component which is designed to restrict or prevent certain acts which are not authorised by the rightholder. Member States must provide "adequate legal protection", which may be civil, criminal or a mix of the two. Technological measures are only protected if they are "effective", which means not when they actually work but when they have been successfully implemented. A simple password is thus "effective" irrespective of the ease with which it may be cracked. Rightholders who use such anti-circumvention measures must allow reproduction which is permitted under the limitations to copyright protection [Art. 6(4)]. Digital restrictions management information is similarly protected (Art. 7).

Unlike Section 1201 of the Digital Millennium Copyright Act, which only prohibits circumvention of access control measures, InfoSoc Directive also prohibits circumvention of copy protection measures, making it potentially more restrictive. In both DMCA and InfoSoc Directive, production, distribution etc. of equipment used to circumvent both access and copy-protection is prohibited. Under DMCA, a potential user who wants to avail herself of an alleged fair use privilege to crack copy protection (which is not prohibited) would have to do it herself since no equipment would lawfully be marketed for that purpose. Under InfoSoc Directive, this possibility would not be available since circumvention of copy protection is illegal.

Implementation

As of September 2006, only Spain and the Czech Republic had yet to implement the Directive at the federal level. Some implementation measures include: