Directive 2001/29 / EC of the European Parliament and of the Council
of 22 May 2001
on the harmonization of certain aspects of copyright and related rights in the information society
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION ,
Having regard to the Treaty establishing the European Community, and in particular Article 47 (2), Article 55 and Article 95 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social Committee (2),
acting in accordance with the procedure referred to in Article 251 of the Treaty (3),
considering the following:
(1) The Treaty provides for the establishment of an internal market and the establishment of a system capable of preventing distortions of competition in the internal market. The harmonization of the laws of the Member States on copyright and neighboring rights contributes to the achievement of these objectives.
(2) The Corfu European Council of 24 and 25 June 1994 underlined the need to create a general and flexible legal framework at Community level to promote the development of the information society in Europe. This presupposes in particular the existence of an internal market for new products and services. Important Community legislative acts aimed at establishing such a regulatory framework have already been adopted or are in the process of being adopted. Copyright and related rights play an important role in this context, as they protect and stimulate the development and commercialization of new products and services, as well as the creation and exploitation of their creative content.
(3) The envisaged harmonization will contribute to the application of the four freedoms of the internal market and relate to respect for the fundamental principles of law and in particular of property, including intellectual property, and of freedom of expression and general interest.
(4) A harmonized legal framework for copyright and related rights, by improving legal certainty and at the same time ensuring a high level of protection of intellectual property, will encourage significant investments in creative and innovative activities, particularly in network infrastructures, and will thus promote the growth and increased competitiveness of European industry, both in the content supply sector and in that of information technologies and, more generally, in many industrial and cultural sectors. This process will save jobs and encourage the creation of new jobs.
(5) Technological development has multiplied and diversified the vectors of creation, production and exploitation. While the protection of intellectual property does not require any new concept, the current rules on copyright and neighboring rights will have to be adapted and supplemented to take due account of economic realities such as the emergence of new forms of exploitation. .
(6) In the absence of harmonization at Community level, legislative processes at national level, in which several Member States are already engaged to respond to technological challenges, could lead to significant disparities in terms of protection and hence , restrictions on the free movement of services and goods which include or are based on intellectual property elements, which would lead to further fragmentation of the internal market and legislative inconsistencies. The impact of these legislative disparities and legal uncertainty will become more noticeable with the development of the information society, which has already considerably reinforced the cross-border exploitation of intellectual property. This development is set to continue. Significant legal disparities and insecurity in terms of protection may hamper the achievement of economies of scale for new products and services protected by copyright and neighboring rights.
(7) The Community legislative framework for the protection of copyright and related rights must therefore also be adapted and supplemented to the extent necessary for the proper functioning of the internal market. To this end, it is necessary to adapt the national provisions on copyright and related rights which vary significantly from one Member State to another or which lead to legal uncertainty hampering the proper functioning of the internal market and the development of the information society in Europe and it is important to prevent Member States from reacting in dispersed order to technological developments. On the other hand, it is not necessary to eliminate or prevent disparities which do not affect the functioning of the internal market.
(8) The various social, societal and cultural repercussions of the information society make it necessary to take into account the specificity of the content of products and services.
(9) Any harmonization of copyright and related rights must be based on a high level of protection, because these rights are essential for intellectual creation. Their protection contributes to the maintenance and development of creativity for the benefit of authors, performers, producers, consumers, culture, businesses and the general public. Intellectual property has therefore been recognized as an integral part of property.
(10) Authors or performers, in order to be able to continue their creative and artistic work, must obtain appropriate remuneration for the use of their works, as must producers in order to be able to finance this work. The investment required to create products, such as sound recordings, films or multimedia products, and services such as on-demand services, is considerable. Appropriate legal protection of intellectual property rights is necessary to guarantee such remuneration and allow a satisfactory return on the investment.
(11) An effective and rigorous system of protection of copyright and neighboring rights is one of the main instruments for ensuring that European cultural creation and production obtains the necessary resources and preserves autonomy. and the dignity of creators and performers.
(12) It is also very important, from a cultural point of view, to grant sufficient protection to works protected by copyright and to objects covered by neighboring rights. Article 151 of the Treaty obliges the Community to take cultural aspects into account in its action.
(13) Common research and consistent use at European level of technical measures to protect works and other subject matter and to provide the necessary information on the rights in this area is of fundamental importance, since the ultimate objective of these measures is to translate into practice the principles and guarantees provided for by law.
(14) This Directive should promote the dissemination of knowledge and culture through the protection of works and other subject matter, while providing for exceptions or limitations in the public interest for educational and teaching purposes.
(15) The Diplomatic Conference held in December 1996, under the auspices of the World Intellectual Property Organization (WIPO), resulted in the adoption of two new treaties, namely the WIPO Treaty on copyright and the WIPO Performances and Phonograms Treaty, which deal respectively with the protection of authors and of performers and producers of phonograms. These treaties constitute an important update of the international protection of copyright and neighboring rights, in particular with regard to what is known as the “digital agenda”, and improve the means of combating piracy in France. the planetary scale. The Community and a majority of Member States have already signed the said treaties and the ratification procedures are underway in the Community and the Member States. This Directive also aims to implement some of these new international obligations.
(16) The question of liability relating to activities carried out in a network environment concerns not only copyright and related rights but also other areas, such as defamation, false advertising or failure to comply with registered trademarks. This issue is dealt with horizontally in Directive 2000/31 / EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, and in particular electronic commerce, in the internal market (“Directive on electronic commerce”) (4) which clarifies and harmonizes various legal issues relating to information society services, including electronic commerce. This Directive must be implemented within a period similar to that set for the Directive on electronic commerce, given that the said Directive establishes a harmonized framework of principles and provisions which concern, inter alia, certain important parts of this Directive . This Directive is without prejudice to the liability provisions of that Directive.
(17) It is necessary, especially in the light of the requirements resulting from digital technology, to ensure that collecting rights societies achieve a higher level of rationalization and transparency with regard to compliance with the competition rules.
(18) This Directive is without prejudice to the arrangements which exist in the Member States for the management of rights, such as extended collective licenses.
(19) The moral rights of rightholders shall be exercised in accordance with the law of the Member States and the provisions of the Berne Convention for the Protection of Literary and Artistic Works, of the WIPO Copyright Treaty and of the WIPO Performances and Phonograms Treaty. Moral rights remain outside the scope of this directive.
(20) This Directive is based on principles and rules already established by Directives in force in this field, in particular Directives 91/250 / EEC (5), 92/100 / EEC (6), 93/83 / EEC (7), 93/98 / EEC (8) and 96/9 / EC (9). It develops these principles and rules and integrates them in the perspective of the information society. The provisions of this Directive shall apply without prejudice to the provisions of those Directives, unless this Directive provides otherwise.
(21) This Directive should define the scope of acts covered by the reproduction right with regard to the various beneficiaries, in accordance with the acquis communautaire. These acts should be given a broad definition in order to ensure legal certainty within the internal market.
(22) Adequate promotion of the dissemination of culture cannot lead to sacrificing the rigorous protection of rights and tolerating illegal forms of circulation of counterfeit or pirated cultural works.
(23) This Directive should further harmonize the copyright of communication to the public. This right should be understood in the broad sense, as covering any communication to the public not present at the place of origin of the communication. This right covers any transmission or retransmission, of this nature, of a work to the public, by wire or wireless, including broadcasting. It does not cover any other act.
(24) The right to make protected subject matter available to the public which is referred to in Article 3 (2) should be understood as covering all acts of making available to the public which is not present at the place where the act of making available originates and as not covering any other act.
(25) The legal uncertainty surrounding the nature and level of protection of acts of transmission on demand, by means of networks, of works protected by copyright and of objects covered by related rights must be eliminated. by setting up harmonized protection at Community level. It must be clear that all holders of rights recognized by this Directive have the exclusive right to make works protected by copyright or any other protected subject matter available to the public by means of interactive on-demand transmissions. These transmissions are characterized by the fact that everyone can access them from the place and at the time that they individually choose.
(26) As regards the making available by broadcasters, within the framework of on-demand services, of their broadcast or television production comprising music on commercial phonograms as an integral part of that production, there is instead of encouraging the conclusion of collective licensing contracts, in order to facilitate the recovery of the rights concerned.
(27) The mere provision of facilities intended to enable or effect communication does not in itself constitute communication within the meaning of this Directive.
(28) The protection of copyright under this Directive includes the exclusive right to control the distribution of a work incorporated in a tangible good. The first sale in the Community of the original of a work or of copies thereof by the owner of the right or with his consent exhausts the right to control the resale of that object in the Community. This right must not be exhausted by the sale of the original or copies thereof outside the Community by the right holder or with his consent. The rental and lending rights of authors were established by Directive 92/100 / EEC. The distribution right provided for in this Directive shall not affect the provisions on rental and lending rights set out in Chapter I of that Directive.
(29) The question of exhaustion of the right does not arise in the case of services, in particular in the case of online services. This consideration also applies to the physical copy of a work or other object made by the user of such a service with the consent of the right holder. The same therefore applies to the rental and lending of the original of the work or of copies thereof, which are by nature a service. Unlike CD-ROMs or CD-Is, for which the intellectual property is incorporated in a physical medium, namely a commodity, any online service is in fact an act that must be subject to authorization when the copyright or neighboring law so provides.
(30) The rights referred to in this Directive may be transferred, assigned or contractually licensed, without prejudice to the relevant national legislative provisions on copyright and related rights.
(31) A fair balance of rights and interests should be maintained between the different categories of rightholders as well as between them and users of protected subject matter. Current exceptions and limitations to rights, as foreseen by Member States, need to be reviewed in the light of the new electronic environment. The disparities that exist in the exceptions and limitations to certain restricted acts have a direct negative impact on the functioning of the internal market in the field of copyright and related rights. These disparities could be accentuated with the development of the exploitation of works across borders and of cross-border activities. To ensure the proper functioning of the internal market, these exceptions and limitations need to be defined more harmoniously. The degree of harmonization of these exceptions should be based on their impact on the proper functioning of the internal market.
(32) This Directive contains an exhaustive list of exceptions and limitations to the right of reproduction and the right of communication to the public. Some exceptions or limitations only apply to the reproduction right, if applicable. The list takes due account of the diversity of legal traditions of the Member States while aiming to ensure the proper functioning of the internal market. Member States apply these exceptions and limitations consistently and the matter will be considered in a future review of the implementing provisions.
(33) The exclusive right of reproduction must be the subject of an exception intended to authorize certain acts of provisional reproduction, which are transitory or incidental, which form an integral and essential part of a technical process and which are carried out in the sole aim to allow either efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other protected object. The acts of reproduction concerned should not in themselves have any economic value of their own. As long as they meet these conditions, this exception covers acts which allow browsing, as well as acts of prefetching in a rapid medium (caching), including those which allow the efficient functioning of the transmission systems, provided that the intermediary does not modify the information or interfere with the lawful use of technology, widely recognized and used by industry, for the purpose of obtaining data on the use of the information . A use is deemed to be lawful when it is authorized by the owner of the right or is not restricted by law.
(34) Member States should be free to provide for certain exceptions and limitations in certain cases such as use, for teaching or scientific research purposes, for the benefit of public establishments such as libraries and archives, for the purposes of reporting current events, for quotations, for the use of persons with disabilities, for public safety purposes and for the purposes of administrative or legal proceedings.
(35) In the case of certain exceptions or limitations, rightholders should receive fair compensation in order to adequately compensate them for the use made of their works or other protected subject matter. In determining the form, modalities and possible level of such equitable compensation, account should be taken of the specific circumstances of each case. In assessing these circumstances, a useful test would be the potential harm suffered by right holders as a result of the act in question. In the event that rightholders have already received payment in another form, for example as part of a license fee, a specific or separate payment may not be due. The level of fair compensation must take into account the degree of use of the technical protection measures provided for in this Directive. Some cases where the harm to the right holder would be minimal might not give rise to an obligation to pay.
(36) Member States may provide for fair compensation for rightholders even when applying optional provisions relating to exceptions or limitations which do not require such compensation.
(37) The national regimes which may exist in the field of reprography do not create major barriers for the internal market. Member States should be allowed to provide for an exception or limitation with regard to reprography.
(38) Member States should be allowed to provide for an exception or limitation to the reproduction right for certain types of reproduction of sound, visual and audiovisual products for private use, with fair compensation. Such an exception could include the introduction or maintenance of remuneration systems intended to compensate rightholders for the damage suffered. Even if the existing disparities between these remuneration systems hamper the functioning of the internal market, they should not, as regards private reproduction on analogue medium, have a significant impact on the development of the information society. The making of private copies on digital media is likely to be more widespread and have a greater economic impact.
(39) When it comes to applying the exception or limitation for private copying, Member States should take due account of technological and economic developments, in particular as regards digital private copying and systems related remuneration, when effective technical protection measures are available. Such exceptions or limitations must not preclude the use of technological measures or the repression of any act of circumvention.
(40) Member States may provide for an exception or limitation for the benefit of certain non-profit-making establishments, such as publicly accessible libraries and other similar institutions, as well as archives, which exception should however be limited to certain specific cases covered. by the right of reproduction. Such an exception or limitation should not apply to uses made in connection with the online supply of works or other subject matter. This Directive should apply without prejudice to the option given to Member States to derogate from the exclusive public lending right under Article 5 of Directive 92/100 / EEC. It is therefore opportune to promote specific contracts or licenses which promote, without creating an imbalance,
(41) When applying the exception or limitation for ephemeral recordings made by broadcasting organizations, it is understood that the means of a broadcasting organization include the means of a person acting in name and under the responsibility of the latter.
(42) When applying the exception or limitation for non-commercial educational and research uses, including distance education, the non-commercial nature of the activity in question should be determined by this activity as such. The organizational structure and the means of financing of the establishment concerned are not decisive elements in this regard.
(43) It is in any case important that the Member States adopt all the appropriate measures to promote access to works for persons suffering from a handicap which prevents them from using the works themselves, taking in particular account of accessible formats.
(44) Where the exceptions and limitations provided for in this Directive are applied, it must be done in accordance with international obligations. These exceptions and limitations may not be applied in a manner which prejudices the legitimate interests of the rights holder or which prejudices the normal exploitation of his work or other object. Where Member States provide for such exceptions or limitations, due account should be taken, in particular, of the increased economic impact which they are likely to have in the context of the new electronic environment. Accordingly, it may be necessary to further narrow the scope of certain exceptions or limitations with respect to certain new uses of
(45) The exceptions and limitations referred to in Article 5 (2), (3) and (4) should not, however, preclude the definition of contractual relations aimed at ensuring fair compensation for rightholders insofar as national law permits.
(46) Recourse to mediation could help users and rights holders to resolve disputes. The Commission, in cooperation with the Member States in the Contact Committee, is to carry out a study on new legal means of settling disputes concerning copyright and related rights.
(47) Technological developments will allow right holders to resort to technological measures designed to prevent or limit unauthorized acts by holders of copyright, neighboring rights or sui generis right on a of data. There is, however, a risk that illicit activities may develop aimed at allowing or facilitating the circumvention of the technical protection provided by these measures. In order to avoid fragmented legal approaches that could hamper the functioning of the internal market, it is necessary to provide for harmonized legal protection against the circumvention of effective technical measures and against the use of devices and products or services for this purpose. .
(48) Such legal protection must relate to technical measures which make it possible effectively to limit acts not authorized by the holders of copyright, neighboring rights or sui generis rights in a database, without however preventing the normal operation of electronic equipment and its technical development. Such legal protection does not imply any obligation to bring the devices, products, components or services into conformity with these technical measures, provided that said devices, products, components or services do not otherwise fall within the scope of the prohibition provided for in Article 6. Such legal protection must respect the principle of proportionality and must not prohibit devices or activities which have, commercially, an object or a use other than the circumvention of technical protection. This protection must not in particular stand in the way of research on cryptography.
(49) The legal protection of technological measures does not affect the application of national provisions which may prohibit the possession for private purposes of devices, products or components intended to circumvent technological measures.
(50) Such harmonized legal protection does not affect the specific protection provisions provided for in Directive 91/250 / EEC. In particular, it should not apply to the protection of technical measures used in connection with computer programs, which comes exclusively under that directive. It must neither prevent nor hamper the development or use of any means permitting to circumvent a technical measure necessary to allow the acts carried out in accordance with Article 5 (3) or Article 6 to be carried out. of Directive 91/250 / EEC. Articles 5 and 6 of that directive only determine the exceptions to the exclusive rights applicable to computer programs.
(51) The legal protection of technical measures applies without prejudice to the provisions relating to public order as defined in Article 5 and to public security. Member States should encourage voluntary measures taken by rightholders, including the conclusion and implementation of agreements between rightholders and other affected parties, to achieve the objectives of certain exceptions or limitations provided for by national law in accordance with this Directive. In the absence of voluntary measures or such agreements within a reasonable period of time, Member States must take appropriate measures to ensure that rightholders provide the beneficiaries of such exceptions or limitations with the appropriate means to benefit from them, by amending an implemented technical measure or otherwise. However, in order to prevent the abuse of such measures taken by rightholders, including within the framework of agreements, or taken by a Member State, all technical measures implemented in application of these measures must be protected. legally.
(52) Likewise, when applying a private copying exception or limitation in accordance with Article 5 (2) (b), Member States should encourage the use of voluntary measures to allow ” achieve the objectives of the said exception or limitation. If, within a reasonable period of time, no voluntary measures to allow reproduction for private use have been taken, Member States may adopt measures which allow the beneficiaries of the exception or limitation concerned to benefit from it. Voluntary measures taken by rightholders, including agreements between rightholders and other affected parties, as well as measures taken by Member States prevent rightholders from resorting to technological measures, which are compatible with the exceptions or limitations relating to private copying provided for in their national law in accordance with Article 5 (2) (b), taking into account the fair compensation required by said provision, and the possible distinction between different conditions of use, in accordance with Article 5, paragraph 5, for example control of the number of reproductions. In order to prevent misuse of these measures, any technical measure applied during their implementation must enjoy legal protection. point b), taking into account the fair compensation required in said provision, and the possible distinction between different conditions of use, in accordance with Article 5, paragraph 5, for example control of the number of reproductions. In order to prevent misuse of these measures, any technical measure applied during their implementation must enjoy legal protection. point b), taking into account the fair compensation required in said provision, and the possible distinction between different conditions of use, in accordance with Article 5, paragraph 5, for example control of the number of reproductions. In order to prevent misuse of these measures, any technical measure applied during their implementation must enjoy legal protection.
(53) The protection of technological measures should ensure a secure environment for the provision of interactive services on demand, in such a way that the public can have access to works or other objects in a place and time chosen by him. In the event that these services are governed by contractual provisions, the first and second subparagraphs of Article 6 (4) should not apply. Non-interactive forms of online use remain subject to these provisions.
(54) Significant progress has been made in the field of international standardization of technical systems for the identification of works and protected subject matter in digital form. In an environment where networks play an increasingly important role, the differences between technical measures could lead, within the Community, to incompatibility of systems. The compatibility and interoperability of different systems should be encouraged. It would be highly desirable that the development of universal systems be encouraged.
(55) Technological development will facilitate the distribution of works, particularly over networks, and it will therefore be necessary for rights holders to better identify the work or other protected subject matter, the author or any other rights holder. , and to provide information on the conditions and modalities of use of the work or other protected object, in order to facilitate the management of the rights relating thereto. Rights holders should be encouraged to use signs indicating in particular, in addition to the information referred to above, their authorization when works or other protected subject matter are distributed over the networks.
(56) There is, however, a risk that illicit activities may develop aimed at suppressing or modifying information, presented in electronic form, on the rights regime to which the work or object falls, or aimed at distributing, import for distribution, broadcast, communicate to the public or make available to it works or other protected subject matter from which this information has been removed without authorization. In order to avoid fragmented legal approaches that could hamper the functioning of the internal market, it is necessary to provide for harmonized legal protection against any activity of this nature.
(57) The systems relating to information on the aforementioned rights regime may also, depending on their design, process personal data relating to the consumption habits of individuals with regard to protected subjects and allow the observation of behavior. online. These technical means must, in their technical functions, incorporate the principles of protection of privacy, in accordance with Directive 95/46 / EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and the free movement of such data (10).
(58) Member States should provide for effective sanctions and remedies against infringements of the rights and obligations provided for in this Directive. They take all necessary measures to ensure that these sanctions and remedies are applied. The penalties provided for are effective, proportionate and dissuasive and must include the possibility of seeking damages and / or an order on request and, where appropriate, the seizure of the material used to commit the offense.
(59) Intermediary services can, in particular in a digital environment, be increasingly used by third parties to infringe rights. In many cases, these intermediaries are best able to put an end to these breaches. Therefore, without prejudice to any other sanction or remedy available to them, rights holders should be able to request that an order on request be made against an intermediary who transmits in a network an infringement committed by a third party of a protected work or other protected object. This possibility must be provided for even when the actions of the intermediary are subject to an exception under Article 5.
(60) The protection provided for in this Directive does not affect national or Community legal provisions in other areas, such as industrial property, data protection, conditional access and conditional access services, access to public documents and the rule of media chronology, which may have an impact on the protection of copyright or neighboring rights.
(61) In order to comply with the WIPO Performances and Phonograms Treaty, Directives 92/100 / EEC and 93/98 / EEC should be amended,
HAVE ADOPTED THIS DIRECTIVE:
OBJECTIVE AND SCOPE
1. This Directive concerns the legal protection of copyright and related rights in the context of the internal market, with particular emphasis on the information society.
2. Except in the cases referred to in Article 11, this Directive shall leave intact and in no way affect existing Community provisions concerning: (
a) the legal protection of computer programs;
b) the right of rental, lending and certain rights related to copyright in the field of intellectual property;
(c) copyright and related rights applicable to the broadcasting of programs by satellite and to retransmission by cable;
(d) the term of protection of copyright and certain neighboring rights;
e) legal protection of databases.
RIGHTS AND EXCEPTIONS
Right of reproduction
Member States shall provide for the exclusive right to authorize or prohibit direct or indirect, temporary or permanent reproduction, by any means and in any form, in whole or in part :
a) for authors, of their works;
(b) for performers, fixations of their performances;
(c) for producers of phonograms, of their phonograms;
(d) for producers of first fixations of films, of the original and copies of their films;
(e) for broadcasting organizations, fixations of their broadcasts, whether broadcast by wire or wireless, including cable or satellite.
Right of communication of works to the public and the right to make other protected subject matter available to the public
1. Member States shall provide for authors the exclusive right to authorize or prohibit any communication to the public of their works , by wire or wireless, including making their works available to the public so that everyone can access them wherever and whenever they choose.
2. Member States shall provide for the exclusive right to authorize or prohibit the making available to the public, by wire or wireless, so that everyone can have access to them from the place and at the time they individually choose. :
a) for performers, fixations of their performances;
(b) for producers of phonograms, of their phonograms;
(c) for producers of first fixations of films, of the original and copies of their films;
d) for broadcasting organizations, fixations of their broadcasts, whether broadcast by wire or wireless, including cable or satellite.
3. The rights referred to in paragraphs 1 and 2 shall not be exhausted by an act of communication to the public, or of making available to the public, within the meaning of this article.
Right of distribution
1. Member States shall provide for authors the exclusive right to authorize or prohibit any form of distribution to the public, by sale or otherwise, of the original of their works or of copies thereof. this.
2. The right of distribution in the Community relating to the original or to copies of a work shall not be exhausted except in the event of the first sale or first other transfer of ownership in the Community of this object by the holder of the right. or with his consent.
Exceptions and limitations
1. The provisional acts of reproduction referred to in Article 2, which are transitory or incidental and constitute an integral and essential part of a technical process and the sole purpose of which is to allow:
a) transmission in a network between third parties by an intermediary, or
b) a lawful use
of a work or a protected object, and which has no independent economic significance, are exempt from the reproduction right provided for in Article 2.
2. Member States have the option of providing for exceptions or limitations to the reproduction right provided for in Article 2 in the following cases:
a) in the case of reproductions made on paper or on a similar medium by means of any photographic technique or any other process having similar effects, with the exception of scores, provided that the rights holders receive compensation fair;
b) in the case of reproductions made on any medium by a natural person for private use and for purposes not directly or indirectly commercial, provided that the rights holders receive fair compensation which takes into account the application or the non-application of the technical measures referred to in Article 6 to the works or objects concerned;
c) in the case of specific acts of reproduction carried out by publicly accessible libraries, educational establishments or museums or by archives, which do not seek any direct or indirect commercial or economic advantage;
(d) in the case of ephemeral recordings of works made by broadcasting organizations by their own means and for their own broadcasts; the preservation of these recordings in the official archives may be authorized because of their exceptional documentary value;
e) with regard to the reproduction of broadcasts made by non-profit social institutions, such as hospitals or prisons, provided that the rights holders receive fair compensation.
3. Member States may provide for exceptions or limitations to the rights provided for in Articles 2 and 3 in the following cases:
a) it is a use for the sole purpose of illustration in the context of teaching or scientific research, subject to indicating, unless this proves impossible, the source, including the name of the author, to the extent justified by the non-commercial purpose pursued;
b) in the case of uses for the benefit of persons with a disability which are directly related to the disability in question and are of a non-commercial nature, to the extent required by that disability;
c) in the case of reproduction by the press, communication to the public or the making available of articles published on current topics of an economic, political or religious nature or of works broadcast or broadcast ” other protected subject matter of the same character, in cases where this use is not expressly reserved and provided that the source, including the name of the author, is indicated, or in the case of the use of works or other protected subject matter in order to report current events, to the extent justified by the information objective pursued and subject to indicating, unless this proves impossible, the source, including the name of the author;
d) in the case of quotations made, for example, for purposes of criticism or review, insofar as they relate to a work or other protected subject matter which has already been lawfully made available to the public, that, unless this proves impossible, the source, including the name of the author, is indicated and they are made in accordance with good practice and to the extent justified by the aim pursued;
e) when it is used for public security purposes or to ensure the proper conduct of administrative, parliamentary or judicial proceedings, or to ensure adequate coverage of such proceedings;
f) in the case of the use of political speeches as well as extracts from public lectures or similar works or protected subject matter, to the extent justified by the aim of information pursued and, however, to unless this proves impossible, that the source, including the author’s name, be indicated;
g) in the case of use during religious ceremonies or official ceremonies organized by a public authority;
h) in the case of the use of works, such as architectural works or sculptures, made to be permanently placed in public places;
i) in the case of the accidental inclusion of a work or
j) in the case of a use intended to advertise public exhibitions or sales of artistic works, to the extent necessary to promote the event in question, to the exclusion of any other commercial use;
k) in the case of use for the purposes of caricature, parody or pastiche;
l) in the case of use for demonstration or repair of equipment;
m) in the case of the use of an artistic work consisting of an immovable or a drawing or a plan of an immovable for the purposes of the reconstruction of this immovable;
n) in the case of use, by communication or made available, for research or private study purposes, by means of specialized terminals, to individuals in the premises of the establishments referred to in paragraph 2, point c), works and other protected objects forming part of their collection which are not subject to purchase or license conditions;
o) in the case of a use in certain other less important cases for which exceptions or limitations already exist in national law, provided that this only concerns analogue uses and does not affect the free movement goods and services in the Community, without prejudice to the other exceptions and limitations provided for in this Article.
4. Where Member States have the option of providing for an exception or limitation to the reproduction right under paragraphs 2 and 3, they may also provide for an exception or limitation to the distribution right referred to in Article 4, to the extent where it is justified by the purpose of the authorized reproduction.
5. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 4 are applicable only in certain special cases which do not prejudice the normal exploitation of the work or other protected subject matter nor cause unjustified prejudice to the interests. legitimate rights of the right holder.
PROTECTION OF TECHNICAL MEASURES AND INFORMATION ON THE REGIME OF RIGHTS
Obligations relating to technical measures
1. Member States shall provide for appropriate legal protection against the circumvention of any effective technological measure which the person carries out knowing, or having good reason to believe, that he is pursuing that objective.
2. Member States shall provide for appropriate legal protection against the manufacture, import, distribution, sale, rental, advertising for sale or rental, or possession for commercial purposes of devices, products components or the provision of services which:
a) are promoted, advertised or marketed with the aim of circumventing the protection, or
b) have only a limited commercial purpose or limited use other than to circumvent protection, or
c) are mainly designed, produced, adapted or produced with the aim of allowing or facilitating the circumvention of the protection
of any effective technical measure.
3. For the purposes of this Directive, “technical measures” means any technology, device or component which, in the normal course of its operation, is intended to prevent or limit, as regards works or other objects. protected, acts not authorized by the holder of a copyright or a right related to copyright provided for by law, or to the sui generis right provided for in Chapter III of Directive 96/9 / EC. Technical measures are deemed to be effective when the use of a protected work, or that of another protected object, is controlled by the right holders through the application of an access code or a protection, such as encryption, scrambling or any other transformation of the work or
4. Notwithstanding the legal protection provided for in paragraph 1, in the absence of voluntary measures taken by rightholders, including agreements between rightholders and other parties concerned, Member States shall take appropriate measures to ensure that the beneficiaries of the exceptions or limitations provided for by national law in accordance with Article 5 (2) (a), (c), (d) and (e), and in Article 5 (3) (a), (b) or e), may benefit from such exceptions or limitations to the extent necessary to benefit from them when the beneficiary has lawful access to the protected work or to the protected object in question.
A Member State may also take such measures in respect of the beneficiary of an exception or limitation provided for in accordance with Article 5 (2) (b), unless reproduction for private use has already been made possible by rightholders to the extent necessary to benefit from the exception or limitation concerned and in accordance with the provisions of Article 5 (2) (b) and Article 5 (5), without preventing the holders of rights to adopt adequate measures with regard to the number of reproductions in accordance with these provisions.
Technical measures applied voluntarily by rightholders, including those implemented pursuant to voluntary agreements, and technical measures implemented pursuant to measures taken by Member States, enjoy the legal protection provided for in paragraph 1. .
the provisions of the first and second paragraphs do not apply to works or other objects that are made available to the public at the request according to the contractual arrangements between the parties so that everyone can have access to the place and at the time he chooses individually.
When this Article is applied within the framework of Directives 92/100 / EEC and 96/9 / EC, this paragraph shall apply mutatis mutandis.
Obligations relating to information on the rights regime
1. Member States shall provide for appropriate legal protection against any person who knowingly performs, without authorization, any of the following acts: (
a) deleting or modifying any information relating to the rights regime in electronic form;
(b) distribute, import for distribution, broadcast, communicate to the public or make available works or other subject matter protected under this Directive or Chapter III of Directive 96/9 / EC and of which information on the rights plan in electronic form have been deleted or modified without authorization,
knowing or having valid reasons for believing that, in doing so, it results in, allows, facilitates or conceals an infringement of a copyright or neighboring right to copyright provided for by law, or to the sui generis right provided for in Chapter III of Directive 96/9 / EC.
2. For the purposes of this Directive, “information on the rights regime” means any information provided by rightholders which makes it possible to identify the work or other protected subject matter referred to in this Directive or covered by the law. sui generis provided for in Chapter III of Directive 96/9 / EC, the author or any other rights holder. This expression also designates information on the terms and conditions of use of the
The first paragraph applies when any of these pieces of information is attached to the copy or appears in connection with the communication to the public of a work or of a protected object referred to in this Directive or covered by the sui generis right provided for in Chapter III of Directive 96/9 / EC.
Sanctions and remedies
1. Member States shall provide for appropriate sanctions and remedies against infringements of the rights and obligations provided for in this Directive and shall take all the measures necessary to ensure that they are applied. These sanctions are effective, proportionate and dissuasive.
2. Each Member State shall take the necessary measures to ensure that right holders whose interests are harmed by an infringement committed in its territory can bring an action for damages and / or request that an order on request be made. as well as, where appropriate, request the seizure of the material concerned by the infringement as well as the devices, products or components referred to in Article 6 (2).
3. Member States shall ensure that rightholders are able to request that an order on request be made against intermediaries whose services are used by a third party to infringe a copyright or a neighboring right.
Maintenance of other provisions
This Directive does not affect provisions relating in particular to patents, trademarks, designs and models, utility models, semiconductor topographies, typefaces, conditional access, access to the cable of broadcasting services, protection of national treasures, legal deposit requirements, anti-trust and unfair competition law, business secrecy, security, confidentiality, protection of personal data and respect for the privacy, access to public documents and contract law.
Application over time
1. The provisions of this Directive shall apply to all works and to all other protected subject matter referred to in this Directive which, on 22 December 2002, are protected by the legislation of the Member States in the field of copyright. and related rights, or which meet the protection criteria in application of the provisions of this Directive or of the directives referred to in Article 1 (2).
2. This Directive shall apply without prejudice to acts concluded and acquired rights before 22 December 2002.
1. Directive 92/100 / EEC is amended as follows: (
a) Article 7 is deleted;
(b) in Article 10, paragraph 3 is replaced by the following: “3. Limitations shall apply only in certain special cases which do not affect the normal exploitation of the protected subject matter or cause a undue prejudice to the legitimate interests of the right holder. ”
2. In Article 3 of Directive 93/98 / EEC, paragraph 2 is replaced by the following: “2. The rights of producers of phonograms expire fifty years after fixation. However, if the phonogram has been made ‘subject to lawful publication during this period, the rights expire fifty years after the date of the first lawful publication. In the absence of lawful publication during the period referred to in the first sentence, and if the phonogram has been made. The subject of lawful communication to the public during this period, the rights expire fifty years after the date of the first lawful communication to the public.
However, if the rights of producers of phonograms, by expiry of the term of protection granted to them by virtue of this paragraph in its version prior to the amendment by Directive 2001/29 / EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society (11) are no longer protected on December 22, 2002, this paragraph cannot have the effect of protecting these rights again . ”
1. By 22 December 2004 at the latest, and every three years thereafter, the Commission shall send the European Parliament, the Council and the Economic and Social Committee a report on the application of this Directive, in which, inter alia, on On the basis of specific information provided by Member States, it examines in particular the application of Articles 5, 6 and 8 in the light of the development of the digital market. With regard to article 6, it examines in particular whether this article confers a sufficient level of protection and whether acts permitted by law are affected by the use of effective technological measures. It presents, if this is necessary in particular to ensure the functioning of the internal market in accordance with Article 14 of the Treaty,
2. The protection of related rights provided for in this Directive leaves intact and in no way affects the protection of copyright.
3. A contact committee is hereby established. It is made up of representatives of the competent authorities of the Member States. It is chaired by a representative of the Commission and meets either on his own initiative or at the request of the delegation of a Member State.
4. The task of the committee will be: (
a) to examine the effects of this Directive on the functioning of the internal market and to point out any problems;
(b) to organize consultations on any matter arising from the application of this Directive;
c) facilitate the exchange of information on relevant developments in regulations and case law as well as in the economic, social, cultural and technological fields;
d) to function as a forum for evaluating the digital market for works and other objects, including private copying and the use of technical measures.
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 22 December 2002 at the latest. They shall forthwith inform the Commission thereof.
When Member States adopt these provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The modalities of this reference are decided by the Member States.
2. Member States shall communicate the text of the provisions of national law which they adopt in the field governed by this Directive.
Entry into force
This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Directive is addressed to the Member States.
Done at Brussels, 22 May 2001.
For the European Parliament
For the Council
(1) OJ C 108, 7.4.1998, p. 6 and
OJ C 180, 25.6.1999, p. 6.
(2) OJ C 407, 28.12.1998, p. 30.
(3) Opinion of the European Parliament of 10 February 1999 (OJ C 150, 28.5.1999, p. 171), Council common position of 28 September 2000 (OJ C 344, 1.12.2000, p. 1) and decision of the European Parliament of 14 February 2001 (not yet published in the Official Journal). Council Decision of 9 April 2001.
(4) OJ L 178, 17.7.2000, p. 1.
(5) Council Directive 91/250 / EEC of 14 May 1991 on the legal protection of computer programs (OJ L 122, 17.5.1991, p. 42). Directive amended by Directive 93/98 / EEC.
(6) Council Directive 92/100 / EEC of 19 November 1992 on rental and lending rights and on certain rights related to copyright in the field of intellectual property (OJ L 346, 27.11.1992, p . 61). Directive amended by Directive 93/98 / EEC.
(7) Council Directive 93/83 / EEC of 27 September 1993 on the coordination of certain rules of copyright and rights related to copyright applicable to satellite broadcasting and cable retransmission (OJ L 248 of 6.10.1993, p. 15).
(8) Council Directive 93/98 / EEC of 29 October 1993 on the harmonization of the term of protection of copyright and certain related rights (OJ L 290, 24.11.1993, p. 9).
(9) Directive 96/9 / EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 77, 27.3.1996, p. 20).
(10) OJ L 281, 23.11.1995, p. 31.
(11) OJ L 167, 22.6.2001, p. 10.