Best Practice Guide

Introduction

Today, years after intense struggles and tussles, almost all EU member states have transposed the EU-Copyright Directive (EUCD) into national law. However, the continuing controversies surrounding the EUCD itself and conflicts about the national implementations have made clear that we are far from having reached a consensus about the appropriate design of copyright law for the digital age that satisfies – or better: serves the interests of – all relevant stakeholders, including creators, artists, teachers, students, and the public at large.

At a time where the existing EU copyright framework is under review, this evolving and peer-produced documentation seeks to take stock and analyze the ways in which EU member states have implemented the EUCD. Building on prior studies and reports, the focus here is on the different design choices that member states have made. Based on this analysis, the project seeks to take things a step further and provide a set of specific recommendations – in the form of “lessons learned” and, ultimately, intended as a best practice guide – for new EU member countries that will face the challenge of transposing the EUCD in the near future.

Broader Context: Promises and Values

The motivation for this best practice guide derives from an open, decentralized, and ongoing discussion among the contributors to this project about the promises of digital technologies, the values that underlie new technologies, and the role of (copyright-)law that shapes today’s information society. The common denominator among the project leaders, contributors, sponsors and collaborators is the belief that new information and communication technologies have the power to transform the use and the value of information, knowledge, and entertainment – including, of course, copyrighted materials – for the benefit of various stakeholders and society at large. The positive effects that might emerge in digitally networked environments are manifold, ranging from economic benefits to semiotic democracy. In the context of this project, user autonomy and collaboration, diversity, and participation are among the core values that are up for discussion.

However, this vision of a shared and diverse information environment is not self-fulfilling. Policy choices must be made, and copyright legislation is among the most important areas of law with a fundamental impact on the ways in which we create, distribute, access and (re-)use information, knowledge, and entertainment. This best practice guide starts with the assumption that a copyright regime that seeks to foster the core values mentioned above must have a number of specific characteristics, both at the conceptual level and at the level of each provision within a statute.

About this (Evolving) Document

Against this backdrop, the document focuses on the concrete, not the abstract. It takes a closer look at four important clusters of legal issues typically associated with EUCD-implementation. First, in a cross-sectional manner, it provides recommendations regarding the implementation of the EUCD’s anti-circumvention provisions (i.e., legal protection of technological protection measures). Second, it suggests a series of principles in areas of copyright law that shape the ways in which we – as peers – can produce and distribute information. The third section deals with universal access issues, including teaching and research exceptions, exceptions for libraries, archives, and the like, and copyright exceptions for disabled people. Third, the document provides recommendations with regard to selected copyright provisions that have an impact on political and cultural participation.

In the Wiki version of this document, the main site includes the best practice principles (work in progress) and links to particularly well- (or, in some instances, ill-)balanced implementations by national legislators. It also includes links to pages where certain core issues are further discussed, first experiences reported, further readings provided, etc.

1. Anti-Circumvention Provisions

(Art. 6 and Art. 8 EUCD)

1.1 What is it about?

The increased ability to copy and distribute information, knowledge and entertainment in the digital environment has provoked a series of responses. In order to gain back control, copyright holders have made use of so-called technological protection measures (TPM), including digital rights management schemes, among other things, aimed at regulating copying, distribution, use of and access to digital works through code (“code is law”). Since users can circumvent these technological protection measures, lawmakers both at the national and international level have enacted provisions that ban the act of circumvention of TPM on the one hand and the production and dissemination of circumvention tools on the other hand. Examples of such legislation are the WIPO Internet Treaties (Art. 11 WCT and Art. 18 WPPT), the Digital Millennium Copyright Act (DMCA Sec. 1201), and – in our context particularly relevant – Art. 6 and Art. 8 of the EUCD.

Experiences with the DMCA in the US and, most recently, the EUCD in Europe illustrate that overbroad legal protection of TPM can have a series of serious unintended consequences. As analyzed in many studies and reports, anti-circumvention laws can have a negative effect, among other things, on user autonomy and expression by inhibiting free speech, restricting fair use, and limiting access to public domain works. Similarly, anti-circumvention laws raise concerns with regard to market competition. Manufacturers and vendors of goods such as toner cartridges, garage door openers, play station consoles, and video games, among others have used anti-circumvention laws to reinforce their dominant market positions by preventing interoperability of products on alternative systems. A series of cases and stories (documented, e.g., here [1]) illustrate how anti-circumvention provisions can have a negative impact on legitimate scientific research and, ultimately, may impede innovation.

1.2 Recommendations

While one might agree or disagree with the concept of technological protection of digital content as such, it is important to note that both the WIPO Internet Treaties and, to lesser extent, the EUCD leave significant leeway to member states as to how exactly they implement the relevant anti-circumvention provisions. As discussed in several studies and reports (see, e.g., here[2]), EU member states in particular have taken different approaches, especially with regard to the definition of the scope of TPM/anti-circumvention provisions, exceptions, and sanctions. Based on the above-mentioned experiences and previous analyses, we suggest the following recommendation for countries that are considering implementing Art. 6 and Art. 8 EUCD on TPM:

• In order to avoid unintended consequences in general and spillover effects of anti-circumvention legislation in particular, (a) define the subject matter and scope of TPM as narrow as possible; (b) choose a liberal approach to exceptions and limitations and make sure that beneficiaries of exceptions can enjoy them; and (c) take a minimalist approach to sanctions and remedies for the violation of anti-circumvention provisions.

(a) Subject matter and scope

At the core of anti-circumvention legislation is the term “technological protection measures” or “technological measures”. The definition of this term determines the scope of the respective provisions to a great extent. Looking at national implementations, three issues are key in this context: (1) Whether or not (and if yes, in what manner) a distinction is drawn between access controls and copy controls (read this example for illustration); (2) how “effectiveness” of TPM is defined (e.g.: if a widely available, simple piece of standard software can be used to circumvent, is the TPM still an effective one?); and (3) which acts of circumvention, exactly, are prohibited. Focusing on the second and third aspect, we recommend the following approaches:

• Provide a definition of the circumstances (“minimum threshold”) under which TPM are considered to be “effective”.

While several EU member state have either avoided the problem of defining “effectiveness” by referring to the types of protected measures or have simply mimicked the language of the EUCD (see, e.g., the German and U.K. implementations), others have made attempts to provide more precise definitions: See Art. 29a(1) of the Dutch Copyright Act or Art. 95(2) of the Hungarian Copyright Act.

Turning to the question of which acts of circumvention to prohibit, it is important to note that the WIPO Internet Treaties do not require that all types of circumvention-related conduct be prohibited. The situation under the EUCD is not clear. The text as well as some commentators suggest that the EUCD prohibits all acts of circumvention that are not authorized by right-holders. For this reason, several member states, for instance the Dutch legislature, have amended their legislation to create broad liability, extending it to situations where TPMs are used to prevent or restrain acts that would traditionally be exempted under the applicable copyright law. The Hungarian Copyright Act, in contrast, states that only “devices, products, components, procedures and methods which are designed to prevent or hinder the infringement of the copyright” are prohibited. This leads to the following recommendation:

• To the extent possible, limit the scope of prohibited circumvention-relevant conduct to situations where circumventions would lead to actual infringement of copyright.

(b) Limitations and Exceptions

Among the core problems associated with anti-circumvention provisions, on both sides of the Atlantic, is the fact that anti-circumvention provisions have supplanted the carefully crafted balance between the copyright holder’s interest on the one hand and the public’s interest on the other hand as stipulated by traditional copyright statutes. The EUCD does not introduce exceptions to circumvention liability in the traditional sense, but stipulates a mechanism that foresees an ultimate responsibility on the part of right-holders to accommodate certain exceptions. At the basic level, the EUCD leaves member states with two options as far as public policy exceptions – enumerated in Art. 6.4.1 EUCD (see also recital 48 and 51) – are concerned. First, member states can take immediate steps to ensure that the beneficiaries of copyright exceptions can benefit from them despite TPM and lack of voluntary measures on the part of right-holders. The alternative approach is a “wait-and-see” approach that saves intervention for later if the practical need for legislation becomes evident (e.g. approach taken by the Netherlands and Austria). Given the importance of the issue, we recommend adopting the first approach, i.e.:

• Immediately establish a mechanism for the enforcement of copyright exceptions vis-à-vis TPM and in the absence of voluntary measures by right-holders. Provide for an easily accessible and effective enforcement mechanism.

As to possible enforcement mechanisms, one might differentiate between a (relatively weak) mediation model as chosen by Greece and Lithuania, among others, a special administrative procedure as established in the U.K., or a “direct-access-to-court” model as implemented by the Irish Copyright and Related Rights Act. The choice of the most accessible and efficient mechanism, of course, depends on the characteristics of the particular national administrative and/or legal system.

While public policy exceptions in Art. 6 EUCD are mandatory, the private copying exception is not. However, as a matter of good policy, we strongly recommend that member states follow the examples of Italy, Lithuania, Malta, and Slovenia, among others, and

• incorporate a private copying right vis-à-vis TPM analog to traditional private copying exceptions in order to foster access to information, knowledge, and entertainment.

[What shall we recommend re: implementation of EUCD 6.4.4?]

(c) Sanctions and Remedies

Art. 8 EUCD requires member states to provide for effective sanctions and remedies for the infringement of rights and obligations set out in the directive, but does not specify the details (however, recital 58 provides some guidance.) Consequently, surveys have shown that Art. 8 EUCD has been implemented in very different ways. The impact of the IP Enforcement Directive (EUIPD) on all these regimes remains to be seen.

A relatively restrictive approach, for instance, has been taken by Greece, which includes both criminal and civil sanctions which apply both to acts of circumvention and trafficking in circumvention devices. Illustrative for a more relaxed approach to sanctions and remedies is Denmark, where the copyright statute creates civil and criminal liability, but does not provide for imprisonment in the context of a violation of the anti-circumvention provisions. Other member states, including Germany, do not impose criminal sanctions if the act of circumvention has been exclusively performed for, or in relation to, private use by the offender or individuals personally connected with him, including family members.

• Use discretion with regard to sanctions and penalties and adhere to the principle of proportionality. Consider limitations on criminal and civil liability for non-profit organizations such as libraries, archives, etc., flexible sanctions for innocent infringers, and limitations on sanctions for legitimate purposes such as research and teaching.

For a more detailed discussion of the issues to be addressed, click here[3] and here[4], for a best-practice guide with focus on U.S., click here[5].