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.

Anti-Circumvention Provisions

(Art. 6 and Art. 8 EUCD)

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.

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 Lithuania, Malta, and Slovenia, among others (e.g. Italy), 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 and here, for a best-practice guide with focus on U.S., click here.

Peer Collaboration

(Art. 2, Art. 3, and Art. 5.2(b) EUCD in particular)

What is it about?

Structural changes in information and communication technologies, economic organization, and social practices in the digital environment have created new opportunities with regard to the ways in which we create and distribute information, knowledge, and entertainment. These structural shifts, analyzed and assessed most thoroughly by legal scholar Yochai Benkler, increase the role of collaborative, non-market, and non-proprietary forms of information production and distribution.

Copyright law (among other areas of law) has obviously a profound impact on the extent to which the promises of digital technologies can be kept, both with regard to social production (including creative re-use) of digital content on the one hand and practices of peer distribution and sharing of information on the other hand. Here as elsewhere, law might not only have a constraining effect, but can also play an enabling or leveling role. National policy-makers, for instance, might gain a better understanding of non-market-based forms of content creation and consider the adjustments of copyright norms that are built upon the traditional incentive-rationale. Bottom-up approaches, such as creative commons, also build upon the enabling aspect of (copyright) law (see, e.g., here for an overview in this context).

While the appropriate design of a copyright framework aimed at enabling various forms of (peer) production of information, knowledge, and culture raises complex strategic questions for policy-makers and might be well mark the future battlefield of next-generation “copyfights”, the issues concerning peer distribution of digital content and practices of online sharing are apparently much more immediate as the tussles over peer-to-peer file-sharing illustrates. Against this backdrop, the next paragraphs focus on the latter aspect – an aspect directly affected by the EUCD (see esp. Art. 2, Art. 3, and Art. 5.2 (b)) and its transposition into national law.

Recommendations

The legality of various practices of online sharing of copyrighted materials - both in close-knit groups such as families or among strangers in loose-knit groups (like large P2P platforms) - is closely related to the question whether or not, and if yes: in what form and as to what extent a particular legal framework grants exception to (or provides limitations on) exclusive rights such as the reproduction right (see, e.g., Art. 2 EUCD) or the communication to the public right (Art. 3 EUCD). Generally speaking, the most relevant provisions in this context are so-called private copying exceptions (a.k.a. “right” to make a private copy). Art. 5.2 (b) EUCD, in essence, stipulates that member states may provide for such an exception to the reproduction right (Art. 2 EUCD) in respect to copies on any medium made by a natural person for private use and for neither directly or indirectly commercial purposes, and on the condition that right-holders receive fair compensation.

As the wording of Art. 5.2(b) EUCD indicates, member states have the choice whether or not they want to provide for such an exception, and they can decide (within the limits of Art. 5.2(b) and the 3-step test, see Art. 5.5 EUCD) about the scope of such an exception. Previous reviews of national copyright frameworks suggest that not all member states have made broad use of Art. 5.2(b) EUCD. In order to protect users' informational autonomy (incl. privacy) and enable legitimate practices of sharing, we recommend the following approach:

• Provide for a broad private copying exception that is applicable to both analog/offline and digital/online works.

Although Switzerland is not a EU member state, the proposed amendment to the Swiss Copyright Act aimed at implementing the WIPO Internet Treaties might serve as a best practice example of a private copying exception. It allows copying of both analog and digital works – not only parts of it, but also copies of the entire work – in the personal realm and among close-knit groups such as relatives or friends. It also limits remuneration for private copying to cases (among others) where a copy of an entire work has been made and where the work is still available on the market.

(b) Peer distribution/file-sharing

The private copying exception has important implications for the users of peer-to-peer-file-sharing services and software. While making works available for downloading over peer-to-peer file-sharing networks is not covered under any of the copyright regimes examined by the authors so far, the downloading itself is treated in various fashions in different countries. Natural persons who reproduce files from peer-to-peer file-sharing networks for private use and who do not act neither directly nor indirectly with a commercial interest can be granted a copyright exception acording to Art. 5.2(b) EUCD, for example. Some Member States have made use of this scope opened up by the directive-others have limited the private copying exception to lawful master copies. Of course, non EU-Members are faced with the same design choice as well.

In Portugal the private copying exception does not require a lawful master copy. The draft for the amendment of the Swiss Copyright Act also has a very liberal copyright exception for private copies. In the explanatory memorandum to the current draft of the Copyright Act it has been stated that the user should be able to invoke the right to make a private copy regardless of the lawfulness of the master copy. This implementation is based on the consideration that it is not appropriate to distinguish between the lawfulness of certain sources for copies within the private sphere of the user.

The German implementation of the EUCD limits the ability to use filesharing technology use by explicitly requiring a master copy that is „not obviously illegal“(see Section 53 (1) German Copyright Act). The term "obviously", however, is not defined.

The Swedish Copyright Act in Article 12 (4) represents a very restrictive transposition. Art. 12(4) "does not confer a right to make copies of a work when the copy that constitutes the real master copy has been prepared or has been made available to the public in violation of" author’s rights.( i.e. rights from Article 2 Swedish Copyright Act) Art. 13 of the Italian Copyright Act excludes illegal master copies from the scope of the private copying exception as well .

• Allow private copying regardless of the lawfulness of the master copy.

Universal Access

(esp. Art. 5.3(a); Art. 5.3(b); Art. 5.3(c) EUCD)

What is it about?

Universal access to various forms of digital content, as mentioned above, is one of the promises of digital technology and has become one of the core policy goals of today’s information society. Indeed, digital networks enable us to distribute information, knowledge, and entertainment almost instantly across the globe at marginal costs close to zero, and never before has content been accessible to such a great number of people at the same time. Universal access with its diverse issues – including aspects such open access to knowledge, the interest in long-term availability and preservation of information, or the recognition of copyrighted works as a building blocks of future creations – interacts in various ways with copyright law, and policymakers at the international, regional, and national level were required to responded to the challenges associated with the transition from analog/offline to digital/online media. As far as the EUCD is concerned, Art. 3 can be seen as a specific response to the digital distribution phenomenon, granting the right holders exclusive control over any communication or making-available of works to the public.

It is a hotly contested question as to what extent these new rights are in tension with or even contradictory to the vision of universal access to information and knowledge. In any event, the answer to this question depends in important respects on the interface between the exclusive rights on the one hand and exceptions on the other hand. In the context of the EUCD and its transposition into national law, respectively, three issues are of particular importance in this respect: (a) teaching conditions (Art. 5.3(a) EUCD); (b) exceptions for archives and libraries (Art. 5.2(c)), and (c) access to and use of copyrighted works for people with disabilities (Art. 5.3(b)). These topics are further explored in the next section.

Recommendations

(a) Teaching exceptions

According to Art. 5.3(a) EUCD "Member States may provide for exceptions and limitations to the exclusive reproduction right of the author and the right to make a work available to the public for use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent justified by the non-commercial use purpose to be achieved".

Malta implemented this exemption almost literally. Since the copyright limitation in Art. 5.3(a) EUCD is not mandatory, the approach to implement the EUCD model exemption can be seen as a relatively permissive copyright regime for research and teaching. However, Malta restricted the exemption with an additional application of the three-step test. Slovenia, in contrast, has taken a very restrictive approach. In its transposition of the EUCD, the making available of works to the public for educational purposes is not allowed. Here as elsewhere, the exact scope of admissible exceptions depends on the interpretation of some of the key terms used in Art. 5.3(a) EUCD: The phrase “illustration for teaching”, for instance, leads to the important question how broad one is interpreting the term “teaching activities”. Germany, for instance, allows use of copyrighted works in intranets for illustratory purposes only during the classroom teaching activity according to section 52a (1) no. 1 Copyright Act. Against this backdrop, a best-practice oriented approach looks as follows:

• Provide a broad teaching exception that not only covers materials for face-to-face use in the classroom of educational facilities, but also the use of works at home for studying purposes. The preparation and post-processing of courses at educational institutions should be included as well.

Another decisive element is the phrase "to the extent justified by non-commercial use purpose to be achieved". This restriction is rather vague and does not suggest a clear demarcation line of permissible use. Rather, the formulation points towards a case-by-case analysis of exempted uses. In contrast to other parts of the EUCD where national implementations should eliminate vagueness and uncertainty, the openness of this limiting phrase might constitutes a desirable – since relatively permissive – element at the level of national transposition.

In addition, some member states have included quantitative limitations. Luxembourg, for instance, further restricts uses – compared to the default set forth in Art. 5.3(a) EUCD – by stating that only short fragments of works may be used. Germany only allows the making available of small portions of published works, of short works, or individual contributions to newspapers or periodicals. In Denmark, an extended collective license was only agreed upon for the photocopying, scanning, printing, storage, sending by e-mail, reproduction on a password-protected Intranet, and downloading of works in so-called teachers’ colleges ( License by Copy-Dan for “seminarier”, available here). According to this license, educators and students may copy a maximum of 20% or 30 pages of a work, whichever is less (Copyright and the Educational Use of Internet Content, Working Group's Report, Annex G, Modified Proposal by the Educational Sector, available here; Overview of the International Context, The European Union Approach, available here).

• Implementations shall not (further) limit the scope of the teaching exception as stipulated in the EUCD. Instead, provide for open definitions of the limitations on exempted uses for teaching purposes.

Art. 5.3(a) EUCD is not the only provision of the EUCD that might apply to teaching and research activities. Indeed, it can overlap with the exemption for purposes of quotation as set forth by Art. 5.3(d) EUCD. According to Art. 5.3(d) EUCD "Member States may provide for exceptions and limitations in cases of quotations for purposes such as criticism or review, provided that … ". The formulation "for purposes such as" suggests that criticism and review do not constitute the only legitimate purposes of quotation.

• Transpose the quotation exception by allowing quotations in multimedia works with educational purposes or within instructions and textbooks for educational use.

(b) Exceptions for archives and libraries

Art. 5.2(c) EUCD states that Member States may allow that publicly accessible libraries, educational establishments or museums or archives may make specific reproductions which are not for direct or indirect economic or commercial advantage.

Furthermore Art. 5.3(n) EUCD gives Member States leeway to make an exception for use by communication or making available, for the purpose of research or private study, to individual members of the public by dedicated terminals on the premises of establishments referred to in paragraph 2(c) of works and other subject-matter not subject to purchase or licensing terms which are contained in their collections.

(c) Exceptions for disabled people

[see Art. 5.3(b) EUCD plus national implementations]

Political & Cultural Participation

(Art. 5.3(c); Art. 5.3(d); Art. 5.3(f); Art. 5.3(i); … EUCD)

What is it about?

[Themes of this section: empowerment of the individual; exceptions aimed at fostering “good citizenship” in the political sense; exceptions aimed at fostering critical review and/or creative interaction with copyrighted materials for political and/or cultural reasons.]

Recommendations

…