European law

CopyrightThe European Parliament and the Council have adopted Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 22 June 2001, pages 10 to 19).The directive in part gives effect to the Copyright Treaty and the Performances and Phonograms Treaty of 1996 of the World Intellectual Property Organisation.

Apart from some technical adaptations to earlier directives, the 2001 directive is stated to be without prejudice to (among other things) the protection of computer programs, existing rental and lending rights, copyright and related rights applicable to broadcasting by satellite and cable transmission, the term of copyright protection, and the protection of databases (article 1).

The directive requires member states to provide for the exclusive right (the 'reproduction right') of authors to authorise or prohibit reproduction by any means and in any form of their works; and it makes similar provision as to the right of performers in respect of the fixation of their performances, phonogram producers in respect of phonograms, the producers of the first fixation of films in respect of the originals (and of copies) of their films, and broadcasting organisations in respect of their broadcasts (article 2).Furthermore, member states are required to provide authors with the exclusive right to authorise or prohibit any communication (the 'right of communication') to the public of their works by wire or wireless means (including the right of access by the public from a place and time chosen individually); similar rights are required to be provided to performers, phonogram producers, producers of the first fixations of films and broadcasting organisations (article 3).Member states are also required to provide authors with the exclusive right to authorise or prohibit any form of distribution of the originals of their works (or of copies) to the public (the 'distribution right') (article 4).Express provision is made as to the exhaustion of rights in relation to the right of communication and the distribution right.

Exceptions to the reproduction right are made in respect of specified acts which (among other things) have no economic significance; furthermore, member states are allowed to enact exceptions and limitations to the rights provided by articles 2 and 3 within defined areas (article 5).The directive envisages the development of 'technological measures' to protect copyright and related rights.Member states are required to provide adequate legal protection against the manufacture, sale, possession for commercial purposes, etc, of devices, products or components which are marketed for the purpose of circumventing such technological devices; but such measures must not hinder the proper use by the beneficiaries of rights under the exceptions and limitations provided (article 6).Member states are also required to provide legal protection against unlawful and deliberate interference with electronic rights-management information and the deliberate distribution of materials following such unlawful interference(article 7).

Enforcement of the provisions of the directive will be a matter for individual member states (article 8).

The directive (which is expressly stated to be without prejudice to other intellectual property rights, the law on restrictive practices, confidentiality, the law of contract, etc) will apply from 22 December 2002 to all matters covered by national laws on copyright and related rights on that date and to other matters not so covered but which fall within the scope of the directive (articles 9, 10).National implementing measures must be brought into force by the same date (article 13).

By Paul Niekirk, barrister