<r -te COMMISSION OF THE EUROPEAN COMMUNITIES 
Brussels, 19.07.1995 
COM(95) 382 final 
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Copyright and Related Rights 
in the Information Society 
(presented by the Commission) 

Contents 1 
Summary 3 
Introduction 6 
CHAPTER ONE 
I. Why a Green Paper is needed 10 
A. Copyright and Related rights: a fundamental concern 
of the Community 10 
(a) The Internal Market 10 
(b) The cultural dimension 11 
(c) The economic dimension 11 
(d) The social dimension 12 
B. A world-wide concern 12 
C. Continuing European Union action 14 
II. Identifying the issues at stake 19 
A. A new challenge 19 
(a) The nature of the new services 19 
(b) Cross-border services 21 
(c) New market structures 22 
B. The present position regarding copyright and related rights 24 
C. Possible consequences 26 
(a) The players in the infopmation society 26 
(b) The regulatory environment 27 
III. A legal framework for the Information Society 29 
A. The Internal Market rules in the Treaty 29 
B. Directives and draft Directives 30 
(a) The Computer Programs Directive (91/250/EEC) 30 
(b) The Rental Right Directive (92/100/EEC) 30 
(c) The Satellite and Cable Directive (93/83/EEC) 31 
(d) The Terms of Protection Directive (93/98/EEC) 31 
(e) The proposed Databases Directive 31 
C. The danger that the Internal Market may relapse into fragmentation 32 
Preliminary general questions 33 
CHAPTER TWO 
Choice of subj ects 3 5 
Part One: General questions 
Section I: Applicable law 38 
Section II: Exhaustion of rights and parallel imports 44 
Part Two: Specific rights 
Section III: Reproduction right 49 
Section IV: Communication to the public 53 
Section V: Digital dissemination or transmission right 56 
Section VI: Digital broadcasting right 61 
Section VII: Moral rights 65 
Part Three: Questions on the exploitation of rights 
Section VIII: Acquisition and management of rights 69 
Section IX: Technical systems of identification and protection 79 
ANNEX 
Questions to interested parties 84 
SUMMARY 
1. If the information society is to develop successfully, the many new services and products 
being created must be able to benefit fully from the information superhigway. Their 
expansion must take place in a regulatory framework which is coherent at national, 
Community and international levels. There is no doubt that laws will have to be adapted 
in order to respond to the new and varied requirements which may appear, raising 
unprecedented issues. Gue of these is the adaptation of the legal environment for 
intellectual property. The approach offered by the Internal Market legislation shows the 
way forward for information society policy. It already offers a tried and coherent 
framework which will allow an effective response to the challenges of the information 
society. 
2. These new services and products, to be provided via the information superhighway, will 
either make use of existing works or will lead to the creation of new ones. Existing 
protected material will often have to be re-worked before being transmitted in a digital 
environment; and the creation of new works and services requires substantial investment, 
without which the scope of the new services being offered will remain very limited. This 
very range and variety of services will encourage the development of infrastructures. 
Without that contribution there would be little point in investing in infrastructures, at 
least for the range of services offered to individual consumers, oriented mainly towards 
leisure and education. The creative effort which provides a basis for investment in new 
services are only worthwhile and will only be made if works and other matter are 
adequately protected by copyright and related rights in the digital environment. 
Once a service has been provided on a network it becomes very difficult, without 
adequate protection, to ensure that a work or other protected matter will not be copied, 
transformed or exploited without the knowledge of the rightholders and contrary to their 
interests. This is due to the special nature of digital technology, which allows a large 
volume of data to be transmitted and copied with far greater ease than was possible in the 
traditional analogue environment. * 
4. 
3. Owing to the very nature of the networks operating in the information society, a wide 
variation in the level of protection of works and other protected matter between Member 
States, or indeed even further afield will give rise to obstacles to the creation of the 
information society. Given the difficulty of verifying the use made of a work, and the 
scope for displacement of business which this opens up, there is a need, at least in some 
fields, for further-reaching harmonisation of the protection provided by copyright and 
related rights. 
There is already a measure of Community-wide harmonization in the shape of four 
directives on copyright and related rights. There is also a Directive on the legal 
protection of databases which will probably be adopted shortly. This last measure puts 
the Community ahead of its commercial partners by providing a proper legal framework 
for the development of services in the information society. 
The question to be addressed now is whether the existing harmonization is enough, and 
in what areas, if necessary, it ought to be taken further, at least in those areas particularly 
affected by the information society. 
Copyright and related rights give the holder sole power to authorize or prohibit the use, 
reproduction and the like of works and other protected matter; and unless the rules 
governing them are aligned from one country to another, there will inevitably be 
obstacles in the way of the free movement of the goods and services involved. The rights 
conferred by domestic law are restricted in their territorial scope, and that limitation can 
be reduced only if the laws of the Member States are harmonized. Moreover, unless there 
is sufficient harmonization at Community level, the markets now opening up to new 
services could well remain segmented between themselves; this would prevent the 
development of services which will be profitable only if they can operate in a market 
wider than the purely domestic one. 
4. Several general questions, certain questions concerning specific rights and others linked 
to the exploitation of rights will be examined. The general questions cover the issue of 
the applicable law and the exhaustion of certain rights. The questions on specific rights 
regard reproduction rights, the concept of "public" in the right of communication to the 
public and the study of certain specific rights which might be applicable to different types 
of digital transmission. In this respect it is proposed to distinguish a right of digital 
dissemination and a right of digital broadcasting. The issue of moral rights is also 
examined in detail. Finally, the sections upon the exploitation of rights examine the 
questions of the administration of rights and of systems of identification and technical 
protection. 
A wide-ranging process of consultation is accordingly needed to enable the Commission 
to work out a programme of action on copyright and related rights. Interested parties are 
asked to take part in this process; it will make for greater transparency in the 
Commission's work, and will be guided by the principle of subsidiarity, since measures 
will be proposed only to the extent that they are absolutely necessary. 
INTRODUCTION 
1. This Green Paper sets out the background to a number of questions of copyright and 
related rights which seem to need examination in order for policy choices to be made 
as the information society develops. 
2. The term "Information Society" was used in the Commission White Paper Growth, 
Competitiveness, Employment - the Challenges and Ways Forward into the Twenty-
first Century. The Commission there concluded that "We must... combine our efforts 
in Europe and make greater use of synergy in order to achieve as soon as possible 
objectives aimed at building an efficient European information infrastructure1". 
3. Following on from the conclusions of the White Paper, a working party chaired by 
M. Bangemann drew up a report for the European Council meeting in Corfu in 
June 1994.2 That report said that "Technological progress now enables us to process, 
store, retrieve and communicate information in whatever form it may t?ke, whether 
oral, written or visual, unconstrained by distance, time and volume." It saw a specific 
role for intellectual property rights as a fundamental part of the regulatory system 
needed to establish the information society: "The group believes that intellectual 
property protection must rise to the new challenges of globalization and multimedia 
and must continue to have a high priority at both European and international levels... 
Europe has a vested interest in ensuring that protection of intellectual property rights 
receives full attention and that a high level of protection is maintained." 
4. The Commission subsequently adopted a Communication entitled Europe's Way to the 
Information Society: an Act on Plan? That paper set out a framework for action by the 
Commission, clearing the way for more specialized discussion papers on specific 
subjects such as the protection of intellectual property rights. It said that measures in 
respect of copyright and related rights which had already been adopted or which were 
currently under consideration would have to be reviewed, and the possible need for 
additional measures examined. The Council meeting of industry and 
telecommunications ministers in September 1994 confirmed this approach. 
ISBN 92-826-74 24-X-1994, p. 115. 
Europe and the Global Information Society - Recommendations of the High-level Group on the Information 
Society to the Corfu European Council, Brussels, 26 May 1994. 
Communication from the Commission to the Council and the European Parliament and to the Economic and 
Social Committee and the Committee of Regions, COM(94) 347 final, Brussels, 19 July 1994. 
7. 
The information society is a reality as of now, in that the existing networks are already 
used for commercial, educational and research purposes, thanks to digital 
communications technology. It is also important to point out that these networks have 
evolved essentially in relation to open communication standards, and that the contents 
of the exchanges which take place on the networks are at present only partly protected 
by intellectual property rights. 
Insofar as the information superhighway will in the future carry more and more works 
and other protected material, their technical and legal protection will become a more 
and more important. That should not create obstacles to the use of networks 
providing information. It is probable that digital communication technology will only 
constitute one of the methods of communication. The other existing media, such as 
books, will remain practical means of disseminating information, and certainly less 
expensive ones. In order for the potential of the information society to be realised to 
the full, it will be necessary to maintain a balance between the interests of the parties 
concerned (rightholders, manufacturers, distributors and users of services as well as 
network operators). 
This Green Paper is concerned mainly with questions of the application of copyright 
and related rights to the content of the new products and services in the information 
society, including certain legal and technical aspects which are inseparably linked with 
the effective exercise of rights. Given the fact that in the different studies concerning 
the information society, the Commission has already extensively developed its 
thoughts on the issues affecting industry, including the role of users, it was decided to 
devote the present study more to the question of holders of copyrights and other 
related rights. 
On the other hand, this Green Paper does not consider the questions of copyright 
arising out of interoperability of networks and the services provided upon them, 
including communication standards and interfaces. The Commission is aware of the 
importance of these aspects which are already dealt with in the regulatory provisions 
currently in force in the Community (such as Council Directive 91/250/EEC on the 
legal protection of computer programs). 
This Green Paper does not cover all of the questions of intellectual property in the 
wider sense which could arise in the information society. Questions concerning 
patents, trade marks, design rights, "know-how" and business secrets are not covered. 
8. 
The Commission has initiated studies on other aspects of the regulatory framework for 
information society services. Thus, apart from the questions of protection of privacy 
and of personal data which have already been or will be specifically dealt with, the 
Commission is going to present a Green Paper upon the legal protection of encrypted 
signals, a Green Paper on commercial communication in the Internal Market and a 
Communication on mechanisms to safeguard transparency to ensure that planned 
national legislation on the subject is consistent with the principles of the Internal 
Market. Finally, it has launched a new consultation process upon the contents of a 
possible Community initiative on media ownership. In addition, the encouragement of 
the development of new audio-visual services, the promotion of cultural identities and 
linguistic diversity and the implications for the protection of the public interest will be 
examined in a Green Paper on the development of new audio-visual services. 
This paper is divided into two chapters. Chapter 1 sets out to describe how the 
information society ought to function. It shows how important the development of the 
information society is to the European Community, and how it fits into the Internal 
Market legal framework. It tries to identify the issues arising due to the emergence of 
the information society. 
Chapter 2 picks out nine of the subjects regarding copyright and related rights which 
were raised in contributions from interested parties and which the Commission 
believes should be given priority in order to ensure that the information society can 
function properly. They are dealt with in three parts. The Commission asks interested 
parties for their views on the various technical and legislative questions raised in each 
section. 
The approaches which the Commission outlines in those sections are provisional, 
being based on the present state of its knowledge of the workings of the information 
society. The questions on which comments are sought are set out at the end of each 
section, and listed in full once again at the end of the paper. 
9. 
This Green Paper is part of a process of consultation. Interested parties, including 
organizations and governments, are asked for their views on the questions it raises. 
Answers and comments, which may only be to a limited number of questions, should 
reach the following address by 31 October 1995: 
European Commission 
Directorate-General XV 
Internal Market and Financial Services 
Unit XV/E-4 
Rue de la Loi/Wetstraat 200 
B-1049 Brussels 
Electronic Mail address: 
E4@DG15.cec.be 
10. 
CHAPTER ONE 
WHY A GREEN PAPER IS NEEDED 
A. COPYRIGHT AND RELATED RIGHTS: A FUNDAMENTAL CONCERN OF THE 
COMMUNITY 
10. The protection of copyright and related rights is vital to the Internal Market, and has 
cultural, economic and social implications for the Community. 
a) The Internal Market 
11. The question of the protection of intellectual property in the information society is a 
matter of interest to the Community primarily because of the need to ensure that goods 
and services can move freely. Producers and suppliers of goods and services protected 
by copyright and related rights must go on being able to treat the Community as one 
market in which to work. 
Copyright and related rights give the holder sole power to authorize or prohibit the 
use, reproduction and the like of works and other protected matter; and unless the rules 
governing them are aligned from one country to another, there will inevitably be 
obstacles in the way of the free movement of the goods and services involved. The 
rights conferred by domestic law are restricted in their territorial scope, and that 
limitation can be reduced if the laws of the Member States are harmonized. 
12. The information society will facilitate creation, access, distribution, use and similar 
activities, and consequently increase the number of situations in which differences 
between the laws of the Member States may obstruct trade in goods and services. The 
position is aggravated by the fact that in the information society works will 
increasingly be circulated in non-material form. This means that the rules which apply 
will very often be those on freedom to provide services. 
While respecting the principle of subsidiarity, therefore, the Community has an 
obligation to take measures in respect of copyright and related rights in order to 
guarantee the free movement of goods and the freedom to provide services. This will 
involve harmonization of legislation, and mutual recognition too, in order to avoid 
creating distortions of competition which would confer an advantage on firms located 
in particular Member States. 
11 
b) The cultural dimension 
13. Copyright and related rights have been seen as fundamental to European Community 
cultural policy. The information society, and in particular multimedia products, have a 
cultural dimension which must be fully taken into consideration (Article 128(4) of the 
Treaty on European Union), above all in acting for the improvement of knowledge and 
dissemination of the cultures and histories of the European peoples, the promotion of 
cultural exchanges and of artistic creativity, and recognition of the value of the 
common cultural heritage. At the same time, cultural aspects can have a major part to 
play in the contents of the services to be provided in the information society. 
14. Heavy use is made of the European cultural heritage in order to create products and 
services to be provided via the information superhighway. In addition to its intrinsic 
worth, that culture has an economic value which makes it subject to market forces. It 
is therefore necessary for the economic recovery to benefit the cultural sector of the 
Community. 
15. The effective protection of this heritage and of the groups who constitute its driving 
force is mainly ensured by copyright and related rights. These are therefore 
fundamental to the development of cultural action by the European Union. At every 
link in the chain between the author and the public they ensure that artists and other 
rightholders are remunerated for the use made of their intellectual efforts. The income 
the rightholders derive from the use of their work helps to encourage the development 
of intellectual and artistic output in the Community. If it is necessary to change the 
law to meet the needs of the information society then authors, performers and other 
rightholders must still be effectively protected. It is absolutely necessary to find the 
right balance between protection of the European cultural heritage and intellectual 
property law, and its exploitation in economically workable conditions, in order to 
ensure that the information society and the European culture develop in harmony. 
c) The economic dimension 
16. The protection of copyright and related rights has become one of the essential 
components in the legislative framework which underpins the competitiveness of the 
cultural industries. Only if these rights are properly protected will there be the 
incentive to invest in the development of creative and innovative activity, which is one 
of the keys to added value and competitiveness in European industry. It has become 
clear that industry will invest in creative activity only if it knows it can prevent the 
results from being improperly appropriated, and can enjoy the fruits of its investment 
over the period of protection conferred by copyright and related rights. 
12. 
Various studies of the economic importance of copyright and related rights conducted 
in the Member States in recent years have come to similar conclusions. Output and 
added value in the areas protected by these rights have both grown strongly, often at a 
rate higher than that of the economy as a whole. The audio-visual market, for 
example, has been growing by 6% a year in real terms, and that rate is being 
sustained.4 More generally, activities covered by copyright and related rights account 
for an estimated 3 to 5% of Community gross domestic product. 
17. The protection these rights provide reaches into a wide variety of industries, with the 
information and entertainment industries high on the list. There can be no doubt that 
creativity and competitiveness in areas such as publishing, the recording industry and 
the cinema are largely dependent on the system of copyright and related rights which 
governs them. The emergence of new technologies and of the information society 
brings with it the prospect of strong expansion in these areas: television, publishing, 
music, software etc. With the world-wide development of new forms of dissemination 
and reproduction, the Community needs to consider how to take better account of the 
importance of copyright and related rights in the new context. 
d) The social dimension 
18. The Commission's White Paper drew attention to the increasing tendency in the 
western economies towards high value-added services based on the use of technology, 
know-how and creativity. European competitiveness depends more and more upon 
innovative ideas capable of leading to new products and procedures, which in their 
turn will generate new employment. Copyright and related rights are often a vital 
consideration here. In a situation where a range of new services are developing and 
being diffused, the opportunities for employment creation, in particular those which 
are employment intensive, should be exploited to the full, This document underlines 
some of the framework conditions necessary to help facilitate the development of new 
activities linked to information services. 
B. A WORLD-WIDE CONCERN 
19. The emergence and establishment of a new information infrastructure- "the 
information superhighway" - and of new products and services have led most of the 
4 See note 1, ISBN 92-826-74 24-X-1994, p. 122. 
13. 
European Community's main trading partners to give thought to the economic, legal 
and social issues that the information society raises. 
20. The questions raised by the information society have a global impact in every sphere, 
and have provoked a wide-ranging international debate inside and outside the 
European Union, its Member States and in specialized international organizations. 
This world-wide phenomenon constitutes a world-wide challenge, calling, at least in 
certain fields, for world-wide responses and solutions. 
21. The G7 Conference held in Brussels on 25 and 26 February 1995 confirmed the need 
for high standards of legal and technical protection for the creative content which will 
be disseminated via these infrastructures. The ministers agreed that measures will be 
developed through national, bilateral, regional and international efforts, including in 
the World Intellectual Property Organization (WIPO), which will ensure that the 
framework for intellectual property and technical protection guarantees that the right 
holders enjoy the technical and legal means to control the use of their property over 
the Global Information Infrastructure. 
22. This process of reflection on the information society, and especially the legislative 
needs it may give rise to, has been taken a long way in several Member States and a 
number of third countries; their legislation on copyright and related rights springs from 
different legal traditions, but they have reacted in comparable ways to the issues these 
developments have raised. 
As far as Member States are concerned, one notable example of this sort of thinking is 
the work of the Sirinelli Commission, which was set up by the French Ministry of 
Cultural Affairs to study the implications of the new technologies for the legal 
concepts currently applied in the sphere of intellectual property. Similar steps have 
been taken in Sweden and Finland. 
23. Outside the Community, the Japanese Ministry of Trade and Industry (MITI) and the 
Cultural Agency have delivered two interim reports to the Government on the legal 
implications of the emergence of multimedia for the present systems of intellectual 
property. In the United States President Clinton has set up a group to design and 
implement administration policy on their "National Information Infrastructure". The 
working party with special responsibility for the intellectual property aspects 
submitted a Green Paper in July 1994. Its White Paper is due shortly. Various papers 
have been produced in Canada and Australia setting out the current thinking on the 
question. 
There has been some international consultation between private interests. 
14. 
24. The question has also been considered in international organizations. The World 
Intellectual Property Organization (WIPO) has been monitoring the impact of new 
technology on copyright and related rights for some time. Several conferences and 
studies have been organized, especially with a view to drawing up a model law on 
copyright which would take account of the new technologies. In October 1989 the 
governing bodies of WIPO took the decision to begin work on a protocol to the Berne 
Convention, intended to adapt it to technical development since the Paris Act. A "new 
instrument" is in preparation which would do the same for the rights of performers and 
the producers of phonograms. These two instruments should allow the existing 
international regulation of copyright and related rights to be reinforced. What is more, 
the debate includes consideration of the impact of digital technology in these fields. 
25. The United Nations Educational, Scientific and Cultural Organization (UNESCO) and 
the Organization for Economic Co-operation and Development (OECD) have also 
been examining the technological and legal problems posed by these changes. 
26. There are provisions relevant to the subject in the Agreement on Trade-related Aspects 
of Intellectual Property Rights (the "TRIPs" Agreement) between the members of the 
World Trade Organization agreed during the cycle of Uruguay Round negotiations. 
The Agreement lays down a core of basic rules on the protection of intellectual 
property. It should also be noted that Article 9 of the TRIPs Agreement links these 
provisions with the Berne Convention. The Members of TRIPs are obliged to comply 
with Articles 1 to 21 of the Convention, with the exception of Article 6 bis concerning 
moral rights. In addition, Article 14 of the TRIPs Agreement provides specific 
protection for performers, phonogram producers and broadcasting organisations. It is 
provided that computer programs are to be protected as literary works. Compilations 
of data or other material, whether in machine-readable or other form, which by reason 
of the selection or arrangement of their contents constitute intellectual creations, are to 
be protected as such. The TRIPs Agreement also makes limited provision for a rental 
right. 
C. CONTINUING EUROPEAN UNION ACTION 
27. The process of consultation to be launched by this Green Paper will follow on from 
work already undertaken in various areas, an example being the Bangemann Report 
mentioned above. It is in part of a global trend, and carries on the work already done 
by the European Community on copyright and related rights. 
15. 
28. This is not the first time that the Community has undertaken a legal and economic 
analysis of the problems raised by the development of new technologies. In recent 
decades the technological change taking place world-wide has meant that the various 
systems of law in force have been reviewed repeatedly in order to make structural 
adaptations to maintain the balance between the imperatives of the protection of 
authors and the dissemination of their works. 
29. In 1988 the Commission, recognizing the importance of the subject, published a Green 
Paper on Copyright and the Challenge of Technology? That paper carried out a legal 
and economic analysis of the most urgent problems raised by the development of new 
technologies, considered from the point of view of the Community's own concerns. 
The Community was at that time working to establish an Internal Market, and needed 
to ensure that the market in protected goods and services operated properly thereafter, 
while at the same time providing a high level of protection for rightholders. The 
Commission noted that "These new technologies have entailed the de facto abolition 
of national frontiers and increasingly make the territorial application of national 
copyright law obsolete". 
The Commission took note of the importance of the developments taking place, and 
suggested several initiatives in order to deal with these issues. Significantly, specific 
legislation on databases was already envisaged by the Commission in its 1988 Green 
Paper. Here it was ahead of all its partners. The Green Paper served as a basis for 
consultations and hearings of interested parties. 
This led to "Follow-up to the Green Paper: Working Programme of the Commission 
in the field of Copyright and Related Rights", which was approved in January 1991; 
following the Green Paper and the reactions it had elicited, the new paper set out to 
define a programme of priority action at Community level.6 The Commission said it 
would be guided by two principles here: "firstly, the protection of copyright and 
related rights must be strengthened; secondly, the approach taken must as far as 
possible be a comprehensive one." The Commission said it "must try to tackle all the 
main aspects which might have implications for the creation of the Internal Market" 
Green Paper on copyright and the challenge of technology - Problems in copyright calling for immediate action, 
COM(88) 72 final, 17 June 1988. 
Follow-up to the Green Paper - Working programme of the Commission in the field of copyright and 
neighbouring rights, COM(90) 584 final, 17 January 1991. 
16. 
and that "a response to the challenges of new technology which is limited to the 
Member States of the Community will deal with only part of the problem." 
30. In accordance with this policy, four directives on copyright and related rights have 
been adopted so far. All of them are highly relevant to the present discussion, both 
because of the substantive rules they introduce and because of the legal environment 
they create. 
31. The 1994 Green Paper, seeking to reinforce the European audio-visual industry7, also 
mentioned the challenges posed by the new technologies to the existing legislative 
framework and the need for an environment which was favourable for the 
development of services. 
32. On 7 and 8 July 1994 the Commission held a hearing of interested parties on the basis 
of the answers given to a questionnaire on the protection of intellectual property in the 
information society. The answers were circulated widely8. 
33. The hearing on 7 and 8 July 1994 made it possible to measure the current degree of 
uncertainty about the consequences of the arrival of the information society upon the 
protection for copyright and related rights. The majority of the participants agreed that 
the information society will quantitatively and qualitatively change the products and 
services on the market. However, they also played down its impact upon systems of 
intellectual property protection, considering that it was more a question of gradual 
change than of a revolution in existing rights. A large majority emphasized the 
potential of copyright and related rights to adapt to technical changes, as technological 
advances throughout their history (such as the appearance of phonography, 
photography, television, satellites and compact discs, etc^ have demonstrated. 
34. The participants were very interested in the question of effective protection of 
rightholders' interests. Nonetheless, it was recognised that a balance ought to be 
preserved between the rights accorded to holders, of whom certain categories could 
find themselves with augmented rights, and the interests of users such as public 
libraries, whose functions must not be hindered. During the exercise, the interested 
parties particularly stressed the question of the identification and management of 
Green Paper on the strategy options to strengthen the European programme industry in the context of the 
audiovisual policy of the European Union, COM (94) 96 final, 6 April 1994. 
Replies from interested parties on copyright and neighbouring rights in the information society, 
ISBN 92-827-0204-9. 
17. 
rights, as much as the analysis of the existing legal environment. In this context, the 
group was clearly opposed to the extension of non-voluntary licence systems. 
The idea of setting up a system of identification of protected works met with 
widespread approval. The interested circles still seem hesitant about the possible place 
for individual management of rights; it became clear that the new identification 
techniques will allow more effective individual control, but at the same time the 
prospect of widespread reproduction and broadcasting makes rightholders uneasy. 
The class of existing rights was felt to be adequate, both to permit new exploitation 
and to maintain satisfactory protection for the rightholders. However, it was 
underlined that certain concepts were going to move into new realms and that it would 
be necessary to "adjust" them as a result. The rights of reproduction, communication 
to the public and of rental were all suggested to be likely to take on new 
characteristics. The participants were also interested in the question of exhaustion of 
rights, and deemed in particular that this principle does not apply for the services 
which will be distributed in the information society. 
Finally, some participants stressed the need for a degree of legal certainty as far as the 
law applicable to this kind of exploitation is concerned. Opinion was divided upon the 
question of moral rights; rightholders wanted them to be reinforced, whereas potential 
providers of services in the information society saw them as a hindrance. 
35. The views put forward there have been taken into account in this Green Paper, which 
is intended to carry the process of consultation further. 
36. In the Commission's view, an evaluation has now to be made of the scale of the 
consequences of the development of services to be provided via the information 
superhighway, and of any implications for the systems of protection which have 
already been harmonized at Community level. 
37. It will also have to be determined whether the differences that there are in the 
protection available under the legislation in force in different Member States are liable 
to obstruct the free movement of goods and services in the Internal Market, and should 
be removed in order to facilitate the development of the information society in the 
European Union. 
38. The present exercise should also provide the Commission with a frame of reference for 
the conduct of discussion on these questions in various technical and legal forums with 
an interest in the information society in general. 
18. 
It will also allow better direction to be given to research projects initiated under the 
Fourth Research Framework Programme. 
39. It must be understood that this paper does not set out to provide definitive solutions to 
problems which are still unclear in many respects, but rather to ask the questions 
necessary for a better approach to the issues, or in some cases to suggest a number of 
possible courses. 
19. 
H IDENTIFYING THE ISSUES AT STAKE 
A. A NEW CHALLENGE 
40. The issues which arise out of the development of an information society and its impact 
on systems of copyright and related rights are still uncertain. Much of the uncertainty 
derives from the ongoing, dynamic character of the process taking place. And while 
technical developments are clearly on the way, it is not always clear what their 
practical impact will be. 
41. Nevertheless, a number of new services are indeed appearing. Even though their 
ultimate shape is still unclear, an initial description can already be given, along with a 
rough outline of the economic and legal processes they are setting in motion. It should 
be borne in mind that consumers have still to make these technologies their own; 
acceptance is hesitant at present. 
a) The nature of the new services 
42. The new services available in the information society are located at the intersection 
between information technology, telecommunications and television. The common 
denominator is digitization. 
43. These services can store a large volume of works and data, and access is easy. The 
content can be made up of one or more of the following: 
• conventional works and other matter, some still protected, some in the public 
domain; 
• multimedia products, that is to say combinations of data and works of different 
kinds, such as pictures (still or animated), text, music and software; 
These services are linked together by a common factor: the concept of interactivity, 
which will allow the contents-themselves to be changed. The degree of interactivity 
necessary has still to be determined. Most of these services will be generated by 
means of databases. Another characteristic of the new services will be that the 
costumer will probably be charged for its use. 
20. 
44. It should be noted that the new (point-to-point) services have different characteristics 
to those of traditional (point-to-multipoint) television programmes; the consumer in 
the second case has a largely passive role, whereas the new services will be available 
on demand and the user will have direct control over the programme. 
45. They offer a very broad range of services at long distance: 
• teleworking; 
• telebanking; 
• teleshopping; 
• media (electronic newspapers); 
• entertainment, with such things as programme libraries (video on demand); 
• leisure services (such as interactive plays in which the public takes part and the 
plot is changed as the story proceeds, virtual museums); 
• sports transmission services, where the spectator can decide the camera angle 
for example, and practical services such as weather forecasts; 
• educational programmes, "tele-teaching"; 
• distance tourism (with such things as visits to archaeological sites); 
• betting channels. 
46. From the present state of development of the market and the trends which can be 
discerned, it would appear that the new services will be used in five main areas: 
• at work, in both the private and the public sectors, with the appropriate 
applications (office automation, financial information, etc.); 
• information and education, including practical applications (teaching); 
• shopping at a distance; 
• healthcare (treatment at a distance, home monitoring); 
• entertainment and leisure, where games and television programmes will play 
the central role. 
It is not clear how these branches will grow in future, but it does seem that workplace 
applications will progress faster than mass market leisure applications, at least at first. 
The market in multimedia products (CD-ROM, CD-i, CD-TV, etc.) is worth an 
estimated ECU 1 000 billion per year today, and is expected to grow by 16% a year 
over the next five or six years.9 
9 See note 1, ISBN 92-826-74 24-X-1994, p. 107. 
21. 
An analysis of CD-ROM publishing in Europe provides an indication of the subjects 
preferred so far (see table below). 
THE TEN MAIN AREAS IN CD-ROM PUBLISHING IN 1994 
General culture, entertainment 
Arts, humanities 
Education, training, careers 
Information technology, computer programs 
Advertising, design, marketing 
Business, companies 
Languages, linguistics 
Crime, law, legislation 
Science, technology 
Maps, geography No of titles 
1 043 
724 
631 
510 
429 
426 
417 
399 
386 
322 % of total 
19.0 
13.2 
11.5 
9.3 
7.8 
7.7 
7.6 
7.3 
7.0 
6.0 % growth 93-94 
73.8 
61.9 
48.8 
47.8 
53.2 
60.7 
61.6 
34.3 
37.8 
26.7 
Source: Information Market Observatory, Report 1993-94 
b) Cross-border services 
47. Economic analysis indicates that the information society and the services available in 
it in the Community will depend for their viability on the existence of a regulatory 
framework which facilitates the creation of packages of services aimed at niche 
markets. Given their cost, the services being carried must aim at a market wider than 
any one domestic market in order to be profitable. Their success will to a great extent 
depend on the availability of a multitude of different services offered at affordable 
prices. Packages of services are needed to stimulate the demand which will ensure 
optimum exploitation of the network. 
48. These packages of services will be profitable only if the supplier can distribute them in 
a global fashion so as to reduce costs. They must be able to circulate throughout the 
Community so that they reach the niche markets in all Member States, markets which 
added together will allow economies of scale to be achieved. Only the prospect of 
distribution to, and exploitation of, all the potential markets in the Member States can 
provide the assurance of profitability and encourage the large and risky investment 
needed. 
49. Service providers will be reluctant to invest in new services unless the legal systems 
governing them are simple and reliable. To follow the package strategy, the investor 
providing the package must be sure that it will be governed by one single set of easily 
22. 
identifiable legal rules. It would be excessively onerous to oblige the services 
provider to apply the different regimes of the fifteen Member States according to the 
final destination of the services provided, and would also place a legal obstacle in the 
way of investment in the industry. 
c) New market structures 
50. The new market structures are as yet largely hypothetical: the information society is 
still only in its infancy. The gradual growth which has taken place has nonetheless 
already had discernible effects on the structure and composition of supply and 
demand, and we can provisionally ne te a few tendencies. 
Considerable uncertainty nevertheless rests over the behaviour of consumers and their 
acceptance of this technological process and of the new services. We will be returning 
to this aspect. 
51. As far as supply is concerned, the main feature of the developing industry seems to be 
the diversification of the products and services available on the market. This has 
produced a growing number of more and more specialized service providers targeting 
specific markets. 
Secondly, this results in the centre of gravity in the production of goods and se-vices 
shifting away from the traditional small firms to big companies already established in 
manufacturing, telecommunications or information technology, which are the only 
ones able to assume the heavy design costs and the risks of operation. This trend 
allows industry to produce a service and to distribute it as widely as possible. There 
has consequently been a significant wave of mergers between program-producing 
companies and network operators (cable, telephone etc.). The formation of a world 
economy forces these companies to improve their competitiveness continually. 
52. On the demand side the main feature is growth in the number of us^rs. The 
development of new types of service has led to personalized consumption: the 
consumer is given far wider scope to make choices and to manipulate the content of 
the service. Video on demand, pay-per-view and other new interactive services 
require an active and specific request on the part of the consumer. A user will be able 
to consult the works on offer, to change existing data and works, and indeed to store 
them himself. 
23. 
53. The information society must have consumer support if it is to exist. There are still a 
number of question marks hanging over its very success. 
54. Innovation and marketing will not be enough to ensure that consumers accept these 
products and change their current consumption habits. The consumer is expected to 
buy new receiving equipment which many people cannot afford. The industry has to 
mobilize now in order to offer services to the general public at an attractive price. The 
feasibility studies available give relatively vague answers to the question of the 
proportion of their income which consumers are prepared to devote to the new 
services. 
55. The fact that household use of these services may grow more slowly, because of the 
costs to be borne, affects the nature and purpose of the services on offer: it may well 
be that "business to business" applications, which hold out prospects of more rapid 
profitability, because businesses already possess some of the necessary equipment, 
will be given preference at first over applications intended for the general public, 
which are likely to lean more towards education or entertainment. 
The European market seems to attach a lower value than some other markets to 
particular new technologies. The following table relates to certain technologies only, 
but it will be seen that in 1992 their rate of penetration of European households was 
substantially lower than in the United States. 
PENETRATION OF EUROPEAN AND US HOUSEHOLDS BY 
NEW TECHNOLOGIES IN 1992 
Percentage of households equipped 
EU US 
CD-ROM equipment 0.5 3.1 
VCRs 54 68.3 
Mobile telephones 3.2 10.7 
Source: Information Market Observatory, Report 1993-94 
Clearly, too, technological progress has not come to a standstill; it will continue to 
advance rapidly, particularly as the growth of world on-line income appears 
promising. The following tables will illustrate this trend. 
24. 
WORLD ON-LINE INDUSTRY REVENUE 1988-1992 
Broking 
Credit 
Financial information 
and research 
Legal 
Professional 
Final consumer 
Marketing 1988 
(ECU m) 
2 698.2 
1 405.2 
1 051.8 
399.0 
354.5 
90.3 
8.2 1989 
(ECU m) 
3 055.8 
1 468.9 
1 160.1 
509.7 
446.4 
123.8 
12.9 1990 
(ECU m) 
3 385.3 
1 493.8 
1 301.2 
577.5 
499.9 
205.3 
19.3 1991 
(ECU m) 
3 580.9 
1 521.8 
1 426.7 
611.5 
529.0 
295.5 
26.7 1992 
(ECU m) 
3 847.7 
1 633.6 
1 591.0 
649.7 
568.6 
398.5 
34.4 %of 
total in 
1992 
44 
19 
18 
7 
7 
5 
>1 
Source: Information Market Observatory, Report 1993. 
56. Without seeking to predict what may come of the situation we have just described, the 
Community ought to articulate any arguments which might help to shape its 
embryonic policy towards the information society. The success of the information 
society will rest in particular on the Community's capacity to provide the proper 
infrastructures, and to develop a strategy in respect of what is carried on those 
infrastructures which facilitates the creation and use of the new products and services 
becoming available. This Green Paper is concerned mainly with the substance of the 
protection of goods and services by copyright and related rights. 
B. THE PRESENT POSITION REGARDING COPYRIGHT AND RELATED RIGHTS 
57. The development of the new information infrastructure and of the services and 
products that will be created and carried on it is a f'irther step in an evolutionary 
process. 
58. The history of copyright and related rights consists of a succession of reactions in 
which the law was adapted to technical developments, sometimes in great bounds. The 
present system is the outcome of thinking and experience accumulated over years of 
analogue technology. It also derives from a time when national markets were 
partitioned off from one another, and there was relatively little in the way of 
cross-border distribution of certain types of works; this provided a solid foundation for 
the idea that the protection of copyright and related rights could be territorial in scope, 
as could the resulting rules and mechanisms governing exploitation. 
59. There are a number of key notions and principles which are common to most systems 
of copyright and related rights legislation, though they are sometimes applied in quite 
different ways. The arrival of new technologies does not affect the nature of these 
notions and principles, but it does have implications for the way we interpret them. It 
25. 
is reasonable to expect that in today's circumstances some of the basic principles will 
take a somewhat different shape, without necessarily undergoing any radical change in 
their nature. The following examples are intended as illustrations only. 
1. The concept of "author" is central in both the continental and the common-law 
systems, although in the common-law jurisdictions there are exceptions to the 
tradition that the author will as a rule be a natural person. 
The way in which works are created is being changed in some respects by the 
emergence of new goods and services. The traditional picture of the author as 
a craftsman working more or less in isolation, and using wholly original 
materials, is contradicted by new forms of creation. The new products and 
services are increasingly the outcome of a process in which a great many 
people have taken part - their individual contributions often being difficult to 
identify - and in which several different techniques have been used. The 
creation of multimedia works is only one example in this context. More and 
more often the initiative comes from a legal person, in the form of an order for 
the work, with the same legal person bearing the artistic and financial 
responsibility. 
2. "Originality" is everywhere a condition of the right to protection; but the 
assessment of originality has hitherto been a matter of national law, except in a 
few areas where there has been harmonization in the Community, such as 
software and photographs. 
The new products and services are-most often the result of adaptations or 
interpretations of existing works. It has to be asked, therefore, to what extent 
the results satisfy the traditional tests of protectability, to what extent these 
new products and services qualify for protection at all, and what the 
consequences will be for the system of copyright and related rights. 
3. The concept of "first publication" of a work has been used in several 
international conventions as the connecting factor linking the work to a 
particular place for purposes of protection (an example being Article 3 of the 
Berne Convention). The fact that creation and dissemination are both taking 
place on the network now makes it difficult to link the work to a specific place. 
4. The principle that authors and other rightholders enjoy exclusive rights gives 
the rightholder the sole right to authorize or to prohibit the exploitation of his 
work, and is regarded as fundamental to the prerogatives conferred on the 
author and other rightholders in the context of the new modes of transmission 
and exploitation of works. Does the huge scale on which works can now be 
26. 
used mean that these rights should be reduced to a straightforward right to 
remuneration, or should they not rather be strengthened, in view of the dangers 
which arise when works can so easily be copied? 
5. The concept of "fair use" or "private use" exists in most systems of legislation, 
allowing a number of acts done in the private sphere for personal use to be 
exempted from copyright. Interested parties often feel that there is a need for a 
precise demarcation between communication to the public and private 
communication. 
60. The law in force at present depends on a relatively strict separation between the 
different categories of work - musical works, literary works, visual works and so on -
and of the law governing them. The forms of exploitation contemplated in the !aw as 
it stands are all based on a fairly slow rate of dissemination. 
Payment most often flows to the various rightholders through a scheme whereby their 
rights are administered by a collecting society, and is based on the concept of a 
material form, as can be seen in the case of private copying. The distinction between 
performirg rights and reproduction rights has hitherto been essential. How is the 
display of a programme on a computer screen to be regarded? Is it communication to 
the public; cr is it reproduction, given that the work is being fixed materially by means 
of a process? 
C. POSSIBLE CONSEQUENCES 
a) The players in the information society 
61. In terms of intellectual property, the first category of players in the information society 
which springs to mind is that of authors and the creative industries. Those primarily 
concerned here are authors of literary and artistic works of all kinds, as defined in 
Article 2(1) of the Berne Convention, including the authors of databases and computer 
programs. 
62. Holders of related rights form the second category: these are performers, the producers 
of phonograms and cinematographic works, and broadcasting organizations. To these 
two categories may be added the other groups traditionally accepted, such as 
publishers, the producers of live performances, the distributors of cinematographic 
works, etc. 
63. But the information society will give a decisive role to other categories of people who 
have not hitherto been directly or immediately concerned by the protection of 
copyright and related rights, particularly the manufacturers of the material to be 
connected to the network, and of course network operators; they all have a large 
measure of responsibility for transmission. 
Furthermore, the public at large, i.e. private users, professional users and institutional 
users will play an important role in the Information Society. 
27. 
Lastly, the establishment of the information society will necessarily bring about a 
review of the place of collecting societies, whose role, organization and operation may 
need to be adapted. The role and functions of the collecting societies will probably 
have to be adapted in order to better deal with the new possibilities and ways to exploit 
rights offered by the information society. The pricing structures and the extent of 
authorisations granted could be modified, since the sound, audio-visual and text 
sectors, not to mention computer programmes and data, are going to become more and 
more linked. 
64. It is important to determine whether the emergence of the information society will 
change the roles of these groups. The answer will to a great extent determine the 
changes which need to be made to the existing legal environment. 
b) The regulatory environment 
65. The possibilities offered by analogue technology are subject to a number of 
limitations. Digitization allows an extremely large volume of data and information to 
be stored in the same material form ("digital compression"), and to be transmitted very 
easily. This means that it has become a great deal simpler to. obtain strictly identical 
copies, to disseminate them in immaterial form, and to manipulate works by sampling 
or colourization for example. 
66. The development of new services made up of works and data covered by different 
legal provisions raises the question of the need for a separate legal status for the new 
work itself. 
67. As far as the concept of a "work" is concerned, a measure of continuity can be 
expected. The works involved will be different in some respects, but a multimedia 
work is an extension of what went before: it is a composite, and borrows from existing 
works, which will often be traditional works such as books. It may be, however, that 
the concept of "originality" will develop in a less personal and more relative direction, 
owing to the special factors discussed below. The fact that a work changes its external 
form does not necessarily imply any change of substance. The law will as a rule be 
indifferent to the technology used. 
68. The possibility of using different techniques in the process of creation does not appear 
to cast any doubt on the concepts of "author" and "work": both require us to identify 
the person who made the choices that directed the process of creation, and who 
thereby expressed his own personality. Nevertheless, there are circumstances in which 
it will be more difficult to identify the author as such, because the work is the fruit of 
collaboration between a large number of people. Here the number of rightholders can 
be expected to increase, though no new category of rightholder would be created. 
28. 
69. It is reasonable to suppose that the main consequences will be in the manner in which 
these works are exploited, with the development of new ways of recording and 
transmitting works, and in the mechanisms of rights management. 
The dissemination of works in immaterial form will grow more and more common as 
digital technology allows them to be marketed in that fashion. This will make the 
borderlines between different categories of work less clear-cut: multimedia works are 
most often composed of borrowings from pre-existing works. The problems and the 
danger lie in the difficulty of identifying the borrowings. This has implications for 
rights management, because most collecting societies are specialized by category of 
work or rightholder. 
In order to be able to manage the rights of rightholders and to control copying, a 
society needs to be able to maintain effective supervision of the use being made of 
their works; the difficulty of doing so remains an unresolved problem. It is determined 
in particular by the numbers of operations, of works exploited, of publishers, of 
authors, and of cases of exploitation of each work. 
70. The criterion of strictly private use is becoming more fluid and difficult to apply. 
Digital technology could make home copying into a fully-fledged form of exploitation. 
A work can be reproduced systematically and any number of times without loss of 
quality. The danger of piracy and improper use without payment to the rightholders 
will increase. There may be a growing need for arrangements at a community level to 
remunerate rightholders, and for the progressive introduction of techniques to limit 
copying of this kind. 
71. At the same time, however, digital technology should also produce new mechanisms 
which will facilitate supervision of the use of protected works and simplify their 
identification, and this should improve the protection of rightholders. Rights 
management should be rendered easier, allowing individual negotiation on the basis of 
exclusive rights to continue. Scales of royalties and the extent of the authorizations 
granted will probably have to be reviewed, as musical and visual works will 
increasingly converge. 
72. The participants at the hearing held in July last year gave carefully qualified replies to 
the question of the extent to which the technological developments currently under 
way might cast doubt on the present systems of legal protection of copyright and 
related rights. 
No thoroughgoing changes would appear to be necessary: instead we should, in a 
proportionate and coherent fashion, be reacting to the new situation and adapting the 
legal framework to the needs of the new environment. 
29. 
TÏL A LEGAL FRAMEWORK FOR THE INFORMATION SOCIETY 
73. A basic legal framework already exists at Community level. The Commission is 
satisfied that the fundamental freedoms of the Internal Market, and specifically the 
right of establishment in Article 52 of the EC Treaty and the freedom to provide 
services in Article 59, together with the directives already adopted, provide answers to 
a number of the questions which arise, and point the way for future policy on the 
information society. 
A. THE INTERNAL MARKET RULES IN THE TREATY 
74. Before going on to consider what need there may be for regulatory action, it is 
important to realize that full and effective implementation of the Internal Market rules 
laid down in the Treaty and secondary legislation will go a considerable way towards 
ensuring that the information society can develop and flourish in the Community. 
Article 7a of the Treaty defines the Internal Market as "an area without internal 
frontiers in which the free movement of goods, persons, services and capital is 
ensured". 
75. The right of establishment is guaranteed by Articles 52 et seq. of the Treaty, and the 
free movement of services by Articles 59 et seq. If these principles are effective, the 
activities which characterize the information society can be carried on in a legal 
framework which is suited to the development of a competitive European industry. 
76. Nevertheless, an information society in the European Community will be fully 
achievable only if these rules are sufficient by themselves to allow the new activities 
generated by the information society to thrive in an area without borders. Those 
seeking to operate in the new environment must not find themselves hemmed in by 
legal constraints arising from a fragmented market. 
The principle of mutual recognition is important here. It allows the supplier of a 
service to supply that service in another Member State while continuing to be subject 
only to the law of his own country. The application of this principle should avoid 
superfluous rules and regulations. 
77. The rules on the free movement of goods in Articles 30 to 36 of the EC Treaty will 
apply where the movement of equipment is concerned, but in an information society 
the circulation of works and information can be expected to take place more and more 
30. 
often in immaterial form, so that the rules on the free movement of goods will 
probably have a less decisive role to play. 
B. DIRECTIVES AND DRAFT DIRECTIVES 
78. A number of directives have been adopted which will be very relevant here. There is 
also an important proposal for a directive which is currently being considered by the 
Community institutions. 
a) Council Directive 91/250/EEC on the legal protection of computer programs (the 
"Computer Programs Directive")10 
79. Computer programs are a fundamental component of the information superhighway: 
they operate all the way along any information chain. They provide the software which 
allows information to be converted into digital form and stored. Software is vital to the 
development of a program-producing industry. It is likewise to be found in networks, 
terminals and servers. The Computer Programs Directive has filled a vacuum in 
Community law, and done so very rapidly. Computer programs are now protected by 
copyright, as literary works. The Directive carries out a far-reaching harmonization of 
a number of exclusive rights conferred on the rightholder. It also defines acts which 
are necessary to the use of a program and which may be performed without 
authorization. 
b) Council Directive 92/100/EEC on rental right and lending right and on certain 
rights related to copyright in the field of intellectual property (the "Rental Right 
Directive")11 
80. This is an across-the-board measure which regulates the general rights applicable to all 
categories of works and other matter protected by copyright and related rights. It also 
harmonizes related rights at a high level. 
The Directive: 
• establishes exclusive rental and lending rights for all works and all matter 
protected by copyright; 
• harmonizes related rights on a uniform basis which frequently goes beyond the 
Rome Convention. 
This Directive has far-reaching implications in that it offers a framework which could 
serve as a precedent for a number of new services, such as video on demand and its 
variants. Video on demand and similar forms of use closely resemble the making 
available for a limited period of time of a cinematographic or audio-visual work, and 
could be considered a form of remote video rental. 
10 Council Directive of 14 May 1991, OJ L 122/42, 17 May 1991. 
1 ' Council Directive of 19 Novemeber 1992, OJ L 346/61. 
31. 
c) Council Directive 93/83/EEC on the co-ordination of certain rules concerning 
copyright and rights related to copyright applicable to satellite broadcasting and 
cable retransmission (the "Satellite and Cable Directive")12 
81. This Directive provides a uniform legal framework in the area of copyright and related 
rights for the development of satellite and cable in Europe. It thus completes the legal 
framework for the creation of a single audio-visual area for broadcasting, defined in 
Directive 89/552/CEE (Cf. the 12th recital of Directive 93/83/CEE). 
One major point is the definition of "communication to the public by satellite". Under 
this provision a single act of broadcasting is subject to the laws of one country only, 
namely the country where the signals are introduced into the chain of communication. 
The Directive establishes the principle that satellite broadcasting rights are to be 
acquired by agreement. Cable retransmission is likewise to take place by agreement. 
But Article 9 lays down that the right to grant or refuse authorization for cable 
retransmission may be exercised only through a collecting society. 
d) Council Directive 93/98/EEC harmonizing the term of protection of copyright 
and certain related rights (the "Terms of Protection Directive")13 
82. This Directive carries out a total harmonization of the terms of protection of all works 
and other matter protected by copyright and related rights in the Community. It is a 
cornerstone of the system needed for the legal protection of the works and services to 
be disseminated on the information superhighway. The term of protection is 
harmonized at 70 years for copyright and 50 for related rights. This level of protection 
is particularly high. 
e) The proposal for a Directive on the legal protection of databases (the 
"Databases Directive")14 
83. The proposed directive, when it is adopted, will have fundamental importance in the 
information society, given the fact that most of the new products and services will be 
operated from databases. 
84. On 10th July 1995, the Council of Ministers reached a common position: the text of 
that common position seeks to harmonise the copyright law applicable to database 
structures, in whatever form, on-line (ASCII) and off-line (CD-ROM, CD-i). It also 
envisages the introduction of a new economic right, sui generis, which would protect 
12 Council Directive of 27 September 1993, OJ L 248/15. 
13 Council Directive of 29 October 1993, OJ L 290/9, 24 November 1993. 
14 Initial proposal: COM (92) 24 final, 13 May 1992. OJ C 156/4, 23 June 1992. 
Modified proposal: COM (93) 464 final, 4 October 1993, OJ C 308/1, 15 November 1993. 
32. 
the substantial investments of database makers. The function of that law is to 
guarantee the protection of the investment in the acquisition, verification and 
presentation of the contents of a database. 
85. The section on copyright of the planned Directive harmonises the criteria which must 
be satisfied in order to qualify for protection. It also defines a category of restricted 
acts and the exceptions to it. 
86. The main feature of the planned Directive is to create a new economic right to protect 
the substantial investment of by a database maker. Considering the considerable 
investment of human, technical and financial resources necessary to create a database, 
and given that those databases can be copied at a much lower cost than that of their 
development, such legal change is important. Unauthorised access to a database and 
the extraction of its contents are thus acts which can have grave technical and 
economic consequences. 
The section upon the sui generis right defines two categories of restricted acts: 
extraction and re-utilization. The right applies to the whole or a substantial part of a 
database, which means that an insubstantial part is not protected by the planned right. 
Protection will last for 15 years, and that period may be renewed if there has been 
substantial new investment. The Directive defines exceptions to the right which are 
similar to those existing in the chapter on copyright, but, in view of the volume of 
information in such databases, the exceptions are generally limited to the right of 
extraction. The sui generis right is conferred in addition to the other existing rights, 
but it is without prejudice to possible rights over the contents. Insofar as the sui 
generis right is not covered by existing multilateral conventions upon the subject, it is 
not subject to the national treatment rule. 
87. The future directive also envisages other provisions, aiming to maintain the balance 
between the interests of the database makers, users, SMEs and holders of copyrights 
and of other rights. 
The text has a wide impact, since it will be the basis for all complementary future 
initiatives concerning the aspects of copyright and related rights relevant to the 
information society. 
C. THE DANGER THAT THE INTERNAL MARKET MAY RELAPSE INTO 
FRAGMENTATION 
88. Responses to any need for regulation that arises in this new legal environment may be 
attempted at national level, at Community level or indeed at international level. The 
Commission must keep a close eye on the nature and consequences of any regulations 
introduced, in order to ensure that the overall framework will be coherent in the future. 
Measures taken at national level are not necessarily driven by the same needs as 
Community measures, and consequently may take a different direction. The 
33. 
Commission must make a special effort to ensure that the desire to regulate is 
reasonable, and that regulation does not simply respond to isolated requests for action 
on a one-off basis. All rule-making must be subject to rigorous evaluation in the light 
of the objectives of the Internal Market and the principle of proportionality. One 
major concern must be to prevent any new fragmentation of the Internal Market, 
which might be the result if national rules were to diverge from those of other Member 
States, or were incompatible with the requirements of the Internal Market and 
hampered the free movement of services in the European Union. It would be 
particularly useful from the point of view of transparency if national regulation cf 
services to be offered in the information society could be brought to the attention of 
the other Member States, and of the Commission, in order to ensure that it was 
consistent with the principles of the Internal Market, and to identify any need which 
might emerge for Community regulation. For that reason, the Commission intends to 
present a communication on a mechanism to ensure regulatory transparency 
concerning the information society in the Internal Market. 
PRELIMINARY GENERAL QUESTIONS 
1. A number of areas of uncertainty are identified in point II. A. Do you know of anything 
which might help to clarify the questions raised there regarding the development of the 
market and of new services ? 
2. Of the factors affecting copyright and related rights, which ones seem to you most 
likely to evolve, and consequently to merit special attention ? 
3. Are there any committees, reports, studies or even concrete plans in your Member 
State concerning the national legislation which might be necessary in the field of 
copyright and related rights in the information society? If so, has a timetable been 
fixed? 
4. What do you think is the most appropriate level for dealing with questions of 
intellectual property in the information society: national, Community or international? 
5. Does the creation of multimedia products based on elements of the cultural heritage 
mean that specific new legislative provision, taking account of the necessity of 
protecting the cultural heritage, is needed? If so, what provision? 
6. Most of the works and services to be supplied on the information superhighway are 
protected by property rights. To what extent, and according to which criteria, do you 
34. 
think that it is possible to measure the overall economic value of these copyrights and 
related rights? 
7(a) Do you have more precise statistical or economic data on the partitioning of the 
economy between the various economic sectors (e.g. publishing, audio-visual 
products, music etc) affected by activities linked to the Information Society? What 
percentage of the turnover of these sectors is covered by the protection of copyright 
and related rights? 
7(b) Do you have specific economic data or predictions which would allow assessment of 
the contribution which activities protected by copyright or related rights make to the 
economic process of the creation of services to be disseminated on the information 
superhighway? 
7(c) Do you have any statistics or analysis on the employment aspects 
(qualitative/quantitative) of activities protected by copyright and related rights within 
the context of the information superhighway ? 
8. Would you say that stronger laws on copyright and related rights would be an 
advantage for SMEs, and, if so, in which sector in particular? 
9. In what ways do you foresee employment being affected by the development of new 
activities protected by copyright and related rights within the context of new services 
to be diffused along the information highway ? 
10. Have you other comments to make on questions which are not raised in this chapter ? 
35. 
CHAPTER TWO 
1. In the light of the remarks made in the first chapter, a more detailed study will now be 
carried out of the possible implications of the development of new technology for the 
system of copyright and related rights. 
As a point of reference this paper takes a number of aspects of the law of copyright and 
related rights which are fundamental to the process of creation and exploitation of works. 
These areas have also been chosen in the light of the interest shown in them by interested 
parties at the hearing in July last year. 
Each area will be examined in accordance with the following plan: 
• an introduction explaining how new technology is affecting the concept; 
• the present legal context in international and Community law; 
• an assessment of the question from the Community viewpoint: here 
an attempt is made to measure the effect of new technology on the point under 
study, in order to assess the need for any adaptation or initiative at 
Community level; 
• questions to which interested parties are invited to reply. 
2. These areas are considered not just in isolation but also in relation to one another wherever 
that appears necessary. 
j. The first part dea's with general questions which substantially affect the exploitation of 
works and other protected matter on the information superhighway. 
• Applicable law (section I): A work is generally considered to be exploited in a 
particular territory, and the law applicable is the law of the place where protection is 
sought. Given the special features of the services to be prpvided in the information 
society, and the need to allow them full freedom of movement in the Community, the 
principle of monitoring the place where works and other protected matter can be said 
to be consumed will cause difficulties. It therefore has to be asked whether and under 
what conditions the present rule should be reviewed, at least inside the Community, 
where a sufficient degree of harmonization has already been achieved. 
36. 
• Exhaustion of rights and parallel imports (section II): There are a number of rules 
governing the exploitation of intellectual property rights. It has to be considered 
whether any changes will be needed here in the new legal environment. The principle 
of the exhaustion of rights is one such rule, a rule which has been developed in the 
Community by the Court of Justice. It allows one of the fundamental freedoms laid 
down in the Treaty, that of the free movement of goods, to be reconciled with respect 
for intellectual property rights. In the information society, it must be asked if the 
products and services available via the information superhighways are subject to the 
same rules, and the possible consequences must be analysed. 
The second part comprises five sections. It mainly contains an analysis of the contents of 
certain specific rights and of the applicable legal regime. Given the views expressed at the 
hearing, there is a clear need for a more detailed study of the effects of new technology on 
certain existing rights; the possibility of creating new rights must also be examined. The 
goal is to define more precisely what should be the legal regime in the information 
society, and, as appropriate, to decide which aspects of copyright and related right need to 
be adjusted. 
• The reproduction right (section III): This right is of fundamental importance. Even 
if it is agreed that the digital recording of a work does constitute a reproduction, there 
is still uncertainty about which rights are affected in a number of situations. The 
section seeks to analyse those questions. 
• Communication to the public (section IV): To the extent that the new technologies 
have generated new forms of exploitation of works, it is important to examine how far 
they can be covered by existing concepts. The concept of "public" in respect of the 
right of communication to the public should now take greater account of private 
communication of the works over networks. There ought to be discussion of the 
boundary between public and private communication in order to guarantee the 
protection of the holders of copyright and related rights (Section VIII). 
• Digital dissemination or transmission right (section V): Digital technology allows 
a multiplicity of communications at the same time as individual manipulation of the 
contents of services, meaning that new services using point to point transmission may 
be developed. An analysis of the law applying to these new services is given. 
37. 
• Digital broadcasting right (section VI): Digital broadcasting is a new transmission 
technique, and its development worries some rightholders, insofar as it involves 
overturning, at least to some extent, the way different parties - radio broadcasters and 
users - behave. 
• Moral rights (section VII): In the laws of most Member States there are moral rights 
which exist alongside the economic rights of rightholders. Digitization greatly 
facilitates the utilization of works, and may make it more difficult for the rightholder 
to monitor the use being made of his work or other protected matter, despite eventual 
possibilities for technical protection (cf. Section IX). In considering the adaptation of 
copyright and related rights to the new technology, therefore, we have to ask how 
non-material interests should be protected in the new legal environment. 
5. The third part, dealing with questions about the exploitation of rights, is divided into two 
sections. It moves away from analysis of the rights themselves and considers the issues 
relating to the administration of those rights, together with the possibilities which 
digitization offers for the identification and protection of works. 
• Acquisition and management of rights (section VIII): This question is just as 
important in respect of the creation of works as it is in respect of their exploitation. 
This section analyses the details of right acquisition in the information society. Those 
who exploit the rights must be able easily to identify those who have rights over the 
works and other protected matter in order to be able to negotiate fair terms for their 
use. That presupposes above all a rationalisation of management and compilation of 
the information necessary for such a task, but that could be done through new forms of 
organisation on the interested parties' own initiatives. 
• Technical systems of identification and protection (section IX): This last section 
sets out to explore the question of the identification of digitised works, which should 
offer new ways to administer rights. Digitisation opens up possibilities for 
identification and even "electronic tattooing", and thus for the protection of works and 
other protected matter travelling on the information superhighway. Identification also 
holds out the prospect of computerisation of the management of copyright and related 
rights. Systems of this kind will in the end be effective only if they are widely 
accepted, but these techniques make a contribution to ensuring the security of 
information. 
38 
PARTI 
GENERAL QUESTIONS 
SECTION I: 
APPLICABLE LAW 
Essential points 
The question of the applicable law arises wherever a situation contains some foreign 
element. In a trans-frontier system like the information society the problem is 
especially acute, and special solutions will have to be found. 
1. Introduction 
Copyright and related rights have traditionally applied on a territorial basis; that is to 
say that the law applicable has been the law of the country in which protection is 
sought (covering such points as the rights granted, exceptions, and the law of 
contract). Protection is granted to nationals of the country and, under the rule of 
national treatment, extended to nationals of other countries parry to international 
conventions which provide fcr national treatment. Thus the showing of a film will be 
subject to the law of the country where the showing takes place. Similarly, if a film is 
broadcast the law applicable will be the law of the country in which it is broadcast. 
Satellite broadcasting has brought a complication into this simple scheme, because one 
act of broadcasting may lead to reception in several national territories with different 
sets of rules. 
The Satellite and Cable Directive settles this question. It provides a definition under 
which broadcasting is deemed to take place in a particular territory, whose law will 
consequently be applicable, while reception of the signal, which is not considered an 
integral part of the act of broadcasting, may take place in several territories together. 
In the information society the network may well be a global one, so that potentially at 
least communication to the public may take place anywhere in the world; practical 
solutions will accordingly have to be found. 
It must be established which intellectual property law applies to point-to-point 
transmission originating in a Member State, and which law applies where the 
transmission originates in a third country. The level of protection given in third 
39 
countries needs to be taken into account when establishing EU policy for 
harmonisation. 
Intellectual property rights are frequently transferred, assigned or licensed by their 
holders. Contracts and the law of contract accordingly play a fundamental role in 
copyright and related rights. It is traditionally accepted in private international law that 
the parties to the contract are free to determine the law applicable, apart from public 
order legislation, but that freedom has to be seen in the light of intellectual property 
law: in certain Community Member States in particular, there has been more and more 
precise regulation of certain forms of contract, such as publishing contracts and audio­
visual production. 
It also has to be determined which law is applicable to contracts. While accepting that 
the parties are free to choose the applicable law, we have to recognize that the law of 
the country where exploitation takes place will govern some of the conditions of 
application. The question accordingly arises how far the freedom of the parties is 
limited, and whether rules on this point would be necessary or useful. 
2. The present legal context 
2.1. The Berne and Rome Conventions do not provide direct solutions to all these 
questions. The Berne Convention does lay down a rule of national treatment, which is 
very broadly worded: it provides that authors are to enjoy "the rights which their 
respective laws do now or may hereafter grant to their nationals, as well as the rights 
specially granted by this Convention" (Article 5(1)). The Rome Convention of 1961, 
on the protection of related rights, is less generous: it provides that national treatment 
is to be "subject to the protection specifically guaranteed, and the limitations 
specifically provided for, in this Convention" (Article 2(2)). 
The TRIPs Agreement lays down provisions on national treatment equivalent to these 
two Conventions (and Article 3). 
The rule that the law applicable to acts of exploitation is the law of the country in 
which protection is sought is an obvious one, and is not spelt out in the Conventions, 
except in one case, in Article 14b,s(2)(a) of the Berne Convention, where it is stated 
that "ownership of copyright in a cinematographic work shall be a matter for 
legislation in the country where protection is claimed." The clarification was needed 
because the Convention allows the rules on ownership of the rights in these works to 
vary from country to country. It was therefore necessary to answer the question what 
happened when protection was claimed in a country where the rules on ownership 
were different from those of the country of origin of the work. 
40 
Lastly, there is the European Convention relating to Questions on Copyright Law and 
Related Rights in the field of Transfrontier Broadcasting by Satellite, signed on 
11 May 1994;1 this is a Council of Europe convention, and defines the law applicable 
in the same way as the Community's Satellite and Cable Directive. 
2.2. Community law affects these questions in various ways. 
The Satellite and Cable Directive does not settle the question of the applicable law, 
which is a matter for the private international law of each Member State; it seeks to 
solve the problem further upstream, with the definition of the act of broadcasting 
against which protection is claimed. It provides in Article l(2)(b) that "The act of 
communication to the public by satellite occurs solely in the Member State where, 
under the control and responsibility of the broadcasting organization, the 
programme-carrying signals are introduced into an uninterrupted chain of 
communication leading to the satellite and down towards the earth." 
The Directive does not distinguish between types of satellite: "'satellite' means any 
satellite operating on frequency bands which, under telecommunications law, are 
reserved for the broadcast of signals for reception by the public or which are reserved 
for closed, point-to-point communication. In the latter case, however, the 
circumstances in which individual reception of the signals takes place must be 
comparable to those which apply in the first case." 
The Directive thus provides a single jurisdictional rule to link a satellite broadcast to a 
particular country. The question when this rule comes into play is made to depend on 
the real capacity for reception rather than on a technical distinction or a distinction laid 
down in the law governing telecommunications. 
As regards the effect of Community law on contractual clauses there are two 
Directives of special relevance, the Computer Programs Directive and the Rental Right 
Directive. 
The Computer Programs Directive sets out some principles governing what is 
admissible in a contract for the use of a computer program and what is not. 
Article 5(2), for example, provides that "The making of a back-up copy by a person 
having a right to use the computer program may not be prevented by contract in so far 
as it is necessary for that use." Article 5(3) states that "The person having a right to use 
• a copy of a computer program shall be entitled... to observe, study or test the 
functioning of the program". 
Council of Europe, European Treaties Series No 153. 
41 
Article 4 of the Rental Right Directive provides that authors and performers are to 
enjoy a right to equitable remuneration which they are not entitled to waive: the 
principles of the primacy and effectiveness of Community law mean that contractual 
clauses cannot be invoked against this provision. 
3. An assessment of the question from the Community viewpoint 
If the Internal Market is to become a reality the supplier of a service must not be left in 
doubt as to the law which applies to cross-border business. In determining what law is 
to apply there are two fundamental factors which must be taken into account: the 
protection of rightholders must remain intact, and it must be possible to supply the 
service with maximum economic efficiency. 
This would suggest that the applicable law ought to be the law of the Member State 
from which the service originates. But if that were to be made the rule, the laws of the 
Member States would first have to be aligned very closely in order to avoid deflections 
of trade and loss of protection for right holders. The country-of-origin rule, which 
would take account of the different relays which might intervene in the transmission 
chain, could then be introduced once harmonization had been achieved. It remains to 
be seen whether this model can be applied to the exploitation of rights by the supplier 
of the service. This is the approach taken in the Satellite and Cable Directive. 
As far as the initial transmission is concerned the Satellite and Cable Directive deals 
only with satellite broadcasting; the rules on the conflict of laws in the case of 
terrestrial broadcasting or cable transmission are a matter for the Member States, and 
may well diverge, which would cause a problem for the Internal Market. 
As regards digital point-to-point "dissemination", the question is much the same as in 
the case of satellite broadcasting. Making a service available in one Member State may 
have consequences in another; for example, an on-line video-on-demand service in one 
Member State might in practice be accessible from other Member States too. 
The supply of a service of this kind ought to be governed by clear rules on the 
copyright and related rights aspects. Here as elsewhere the basic principle should be 
that the applicable law is that of the Member State in which the service originates. But 
in the intellectual property sphere that principle can be applied only if there is a 
far-reaching harmonization of the relevant rights at the same time. 
42 
At international level priority should be given to harmonizing the rules on the 
protection of both copyright and related rights to provide a high level of protection. 
The Council of Europe's Convention sets an important precedent here, because in 
order to allow the application of the law of the State on whose territory the broadcast 
originates it provides that the Berne Convention (Paris Act 1971) and the Rome 
Convention of 1961 are to apply. 
Of course a worldwide solution would be desirable, but that will be possible only if 
there is an agreement on the substantive law of copyright and related rights which 
ensures a high level of protection and a sufficient measure of harmonization. There is 
certainly no such agreement at present. 
A Community rule on the applicable law would seem to be indispensable. Such a rule 
could be along the lines of the mechanism in the Satellite and Cable Directive: the act 
of communication could be defined in a similar way, on the basis of transmission 
rather than reception. For transmissions coming into the Community from outside, 
other mechanisms must be considered, or at least safeguard clauses to ensure the 
protection of rights of authors and the holders of related rights. One method of doing 
this is contained in the Satellite and Cable Directive. 
4. Questions 
(1) Does the application of the country-of-origin rule mean that additional criteria 
and provisions are necessary? If so, what should they be? 
(2) Do you think, considering the country-of-origin rule, that it is necessary to 
identify a certain number of complementary criteria for determining its 
application? If so, wha; criteria? 
(3) In order to determine all parties which might be liable, do you think that it 
would be possible to identify each possible participant alon:i the transmission 
chain? If so, please could you specify those participants. 
(4) Given the differences there are in levels of protection, should the 
country-of-origin ru*e be used in the Community to define the act of 
transmission in respect of: 
• only those transmissions which originate in a Member State; 
• only those transmissions which originate in a Member State or in a 
third country which applies the Berne Convention (Paris Act 1971) and 
the Rome Convention of 1961 ; 
• all transmissions, originating in any country? 
(5) If the country-of-origin rule ought to be retained, which laws and areas of 
national law should be harmonized so as to avoid deflections of trade and loss 
of protection for rightholders, considering particularly: 
• exceptions to exclusive rights; 
• ownership; 
• moral rights; 
• other rights? 
(6) How, to what extent and in which areas should the protection of rightholders 
be improved in countries which apply the Berne and Rome Conventions, or 
indeed in the Community, if the country-of-origin rule is to be applied? 
(7) If in your opinion the country-of-origin rule should not be introduced, what 
rules would you like to see applied instead? 
(8) Do you think that safeguard clauses can properly protect Community 
rightholders where matter is first entered into a network in a third country 
which does not provide sufficient protection for intellectual property? 
(9) Do you think that parties should be entirely free to choose the law of the 
contract, or do you think that freedom of contract should be restricted: 
• across the board; 
• only so as to protect certain specific aspects such as moral rights, 
equitable remuneration, or management by collecting society; 
• only where the contract is concerned with the works or other protected 
matter of European Union rightholders? 
44 
SECTION II: 
EXHA USTION OF RIGHTS AND 
PARALLEL IMPORTS 
Essential points 
A video cassette or sound recording marketed by the rightholder or with his consent in 
one Member State may be resold anywhere in the Community, and the rightholder 
cannot object. He exhausts his distribution rights once he accepts the first marketing. 
However, the marketing of a product incorporating his work does not exhaust other 
rights such as the right of reproduction or adaptation. Every service supplied (e.g. 
broadcasting, rental, or lending) is also an act which must be authorized separately, 
without prejudice to future forms of exploitation; these rights are not subject to 
exhaustion. 
1. Introduction 
There are two dimensions to the rule of exhaustion. In the first place it is a limitation 
on the right of distribution. That right is exhausted once copies of the work are placed 
on the market with the consent of the rightholder. There is then the Community law 
aspect: if the rightholder places on the market of a Member State an article which 
exploits an intellectual property right, or if such an article is so marketed with his 
consent, he cannot subsequently object to the article's free movement throughout the 
Community. Thus he will be unable to invoke his intellectual property rights, and 
particularly the right of distribution in another Member State, in order to prevent the 
sale of that article by a parallel importer. 
The concept of the exhaustion of intellectual property rights is a central one in 
Community law, because it provides the means whereby the Court of Justice has 
sought to reconcile the free movement of goods with the territorial character of 
intellectual and industrial property rights. This allows the Community market to be 
treated in exactly the same way as a domestic market as far as goods are concerned, 
always provided the laws of the Member States are identical or at least very similar. 
On the other hand, if an article is placed on the market by a third party without the 
rightholder's consent, even though that act is lawful in the country in question, the 
exhaustion rule will not apply. In the Patricia case1 , for example, the Court of Justice 
found that sound recordings which might be manufactured lawfully in one Member 
Case 342/87 EMI Electrola v Patricia Im- imd Export and Others [1989] ECR 79. 
45 
State, because the term of protection had expired there, nevertheless could not be sold 
in another Member State where the term of protection had not yet expired. 
The Court of Justice has consistently held that in the absence of any harmonization it 
is the legislation of the Member States which determines whether or not an intellectual 
property right exists. The result is that marketing may be possible without the consent 
of the rightholder in one Member State but not in others, and differences between the 
legislation in force in different Member States can consequently give rise to barriers to 
trade. 
However, the question of the exhaustion of rights does not arise in the same way 
where services rather than goods are to be supplied. If there is an intellectual property 
right which makes a service subject to authorization, the act of supplying that service 
will be subject to authorization every time. Unlike what happens where the intellectual 
property is incorporated into a product, such as a video cassette of a film, therefore, 
the broadcasting of a film, o'r the showing of a film in a cinema, does not exhaust the 
holder's right to authorize or prohibit the broadcasting, projection or cable 
retransmission thereafter. 
The area in which a work may be broadcast and the number of occasions on which it 
may be broadcast is determined only by the broadcaster's contract. A third party who 
by definition has no contract with the rightholder - he would not be a third party 
otherwise - may not supply any service making use of the works or protected matter 
without infringing the holder's intellectual property rights, yet if the same third party 
lawfully buys video cassettes on the Community market then he may sell them freely, 
by virtue of the exhaustion rule which applies to goods. 
Of course the terms of the contract between a rightholder and a licensee may be caught 
by the rules oh competition2 . Clauses which prohibit sale in specified areas, or which 
strictly limit the area in which a service may be supplied, might possibly be found to 
infringe the competition rules. 
2. The present legal context 
2.1. The Berne and Rome Conventions do not cover the question of the exhaustion of 
rights. Exhaustion is an aspect which did not receive attention when these agreements 
were being negotiated or revised. 
The TRIPs Agreement, however, makes an express reference to it. Article 6 reads as 
follows: "For the purposes of dispute settlement under this Agreement, subject to the 
provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the 
issue of the exhaustion of intellectual property rights" (Article 3 is concerned with 
See the Commission Decision Miller International, 1 December 1976, JO L357, 29.1.1976, p.40. 
46 
national treatment, and Article 4 with most-favoured-nation treatment). States remain 
free to regulate the question of exhaustion, provided they treat non-nationals in the 
same way. 
In other words, if the question of exhaustion other than Community-wide exhaustion 
were to be regulated by a future convention, the treatment it provided for would have 
to be applied to the nationals of all countries party to the TRIPs Agreement. 
2.2. It has already been pointed out that exhaustion is an important concept in primary 
Community law. It is an integral part of the law laid down in Articles 30 to 36 of the 
EC Treaty, which deal with the free movement of goods. However, the fact that a 
rightholder authorizes one broadcast of a film in one section of the Community 
territory does not exhaust his rights over later broadcasts or broadcasts in other parts of 
the Community3 The Court of Justice has also held that the sale of copies of a video 
cassette does not exhaust the right to authorize or prohibit hiring out.4 
The question of exhaustion has also been tackled in secondary legislation. The 
Computer Programs Directive provides that "The first sale in the Community of a 
copy of a program by the rightholder or with his consent shall exhaust the distribution 
right within the Community of that copy, with the exception of the right to control 
further rental of the program or a copy thereof (second sentence of Article 4(c)). 
The Rental Right Directive also touches on the subject in several ways. Article 1(4) 
states that the right to authorize or prohibit the rental and lending of originals and 
copies of copyright works and other protected matter "shall not be exhausted by any 
sale or other act of distribution of originals and copies of copyright works and other 
subject matter". Article 3 specifies that this Directive is without prejudice to the 
provisions on the rental of computer programs in the Computer Programs Directive. 
Article 9(2) of the Rental Right Directive, speaking of related right holders, states that 
"The distribution right shall not be exhausted within the Community in respect of an 
object... except where the first sale in the Community of that object is made by the 
rmhtholder or with his consent." 
-s See the two Coditel judgments: Case 62/79 Coditel v Ciné-Vog Films [1980] ECR 881 and Case 262/81 Coditel 
v Ciné-Vog Films [1982] ECR 3381. 
4 Case 156/86 Warner Brothers and Metronome Video v Christiansen [1988] ECR 2605. 
47 
It will be seen that this provision in the first place reflects the case-law of the Court of 
Justice with regard to Articles 30 et seq., which has been outlined above. But it goes 
further, in that it also addresses the question of what has been called "international 
exhaustion" of rights: it prevents the Member States from invoking exhaustion of this 
kind. Member States, therefore, are not free to consider that the distribution right in 
the Community is exhausted when goods subject to an intellectual property right are 
placed on the market in a non-Community country. The rightholder may prohibit 
parallel imports into the Community even if he himself sold the goods in the 
non-Community country. 
This provision, seen in the two Directives cited above, was adopted because leaving 
Member States free to provide for international exhaustion might have had a damaging 
effect on the operation of the Internal Market. 
An assessment of the question from a Community viewpoint 
Whether a distribution right is capable of being exhausted by an exploiting act of the 
rightholder, or a third party with the rightholder's consent, depends upon the form in 
which the protected work or related matter is exploited. 
If it is incorporated in a material form it is subject to the rules on free movement of 
goods and, in consequence, to the principle of Community exhaustion. A different 
question is whether Community exhaustion is exclusive, that is to say whether 
Member States are free to take the view that the sale of a work or related matter in 
material form in a third country exhausts the distribution right world-wide, or whether 
it is exhausted only if the goods are marketed in the Community, as is explicitly 
spelled out by Article 9(2) of the Rental Right Directive with regard to the holders of 
related rights. Article 4 (c) of the Computer Programs Directive and the relevant 
Articles in the proposal for the Directive on the protection of databases lead to the 
sa:ne conclusion, and thus also exclude international exhaustion in their relevant 
fields, although the drafting of those Articles is different. As different views on this 
point from one Member State to another may have repercussions on the Internal 
Market, it will have to be examined if the principle of international exhaustion must 
also be ruled out with regard to the distribution right of all other subject matter. 
On the other hand, if the work or related matter is not incorporated in a material form 
but is used in the provision of services, the situation is entirely different. The hearing 
in July 1994 has already made clear that the interested parties feel that it should be 
ensured that the rights are not exhausted by the information superhighway. In fact, 
given that the provision of services can in principle be repeated an unlimited number 
48 
of times, the exhaustion rule cannot apply. That has already been recognised by the 
Court of Justice in two decisions in cases concerning film projection and the right of 
public performance of a musical work5. 
The Commission could accept this approach in respect of services, which characterise 
the information society. Unlike the distribution right for material items, the different 
rights attached to services transmitted by electronic means can hardly be made subject 
to exhaustion. In fact, every service supplied (e.g. broadcasting, rental, or lending) is 
an act which must De authorised separately, without prejudice to future forms of 
exploitation. 
4. Questions 
1) Should a rule be made excluding the international exhaustion of copyright, 
along the lines of Article 9(2) of the Rental Right Directive? 
2) Should it be reaffirmed that there is no exhaustion of any rights (e.g. 
broadcasting, transmission and rental rights) in respect of the supply of 
services? 
3) How do you see these questions against the background of on-line networks 
which seem destined to become world-wide? 
4) Can systems providing for international exhaustion coexist with others which 
do not? 
Sec especially the case Coditel v. Ciné-Vog Films [1980] ECR 881 ; for the law on public performances, 
Ministère Public v. Toumier [ 1989] ECR 2521. 
49 
PART TWO 
SPECIFIC RIGHTS 
SECTIONIII: 
REPRODUCTION RIGHT 
Essential points 
The development and spread of analogue systems of reproduction had made it 
impossible to control copying, and especially private copying, but the digitization of 
works and other protected matter means that strict control of reproduction can now be 
envisaged once again. The right of reproduction, and the exceptions to it, particularly 
for private copying, should be reviewed accordingly. 
1. Introduction 
The right of reproduction is the core of copyright and related rights: it allows the 
rightholder to authorize or prohibit anyone from reproducing the work or other 
protected matter. By allowing the rightholder to prevent reproduction it gives him 
control over other acts of exploitation at a subsequent stage. 
The reproduction right was easy to enforce when the available technology meant that 
reproductions necessarily took a material form, and that only professionals had access 
to the equipment needed. Any unauthorized reproduction by professionals constituted 
an act of piracy, and could easily be proven by establishing the existence of illicit 
copies. 
The first big change to take place was that technological development made it easier to 
reproduce works and other protected matter. Photocopiers became common, and the 
quality of photocopies improved constantly, which opened up the possibility of 
large-scale reproduction of words and pictures to a broad public. Everyone is now also 
in a position to copy sound and video recordings in private homes. This facilitates 
access to literary and artistic works by consumers. It is a new form of exploitation of 
such works, and damages the interests of rightholders. 
In view of the economic importance of these practices most Member States have 
introduced special legal arrangements for reprography (the use of photocopying or 
other reproduction processes to obtain a facsimile on paper, with or without a change 
50 
of format) and for private copying (the reproduction of sound and audiovisual 
recordings by private parties for private use). 
The second big change is that as a result of the digitization of works and other 
protected matter, and their use. in data processing systems, they are more and more 
often being reproduced in a form which cannot be apprehended directly by the human 
senses. The Computer Programs Directive considers the problem of intermediate 
reproduction arising along the chain of transmission. The concept of reproduction has 
consequently to be reviewed, in order to determine whether the reproduction right 
should come into play in the ordinary use (digitization, intermediate copies, 
downloading into main memory) of the computers and other equipment which 
characterize the information society. 
The development of technology has a certain number of important advantages. In 
ordinary use a standard photocopier, cassette deck or video cassette recorder allows 
copies to be made, and there is no way to prevent this apart from depriving the 
equipment of what is an essential function, but digitization allows private digital 
copying of a work or other protected matter to be detected, and limited if that is 
considered desirable. Of course this assumes that the technical arrangements necessary 
can be adoptrd generally; but the fact remains that control of the use of works has now 
become possible once again (see Section IX). 
This change must be taken into account when we consider the right of reproduction in 
a digital environment. Where the technology does not allow copying to be prevented, a 
valid response may continue to be that levies should be charged on the equipment and 
recording medium, and private copying be declared permissible. But where there is the 
technical means to limit or prevent private copying, there is no further justification for 
what amounts to a system of statutory licensing and equitable remuneration. 
2. T*ie present legal context 
2.1. In .he case of copyright the exclusive reproduction right is defined in Article 9 of the 
Bene Contrition. Paragraph 1 of that Article provides that authors of literary and 
artistic works are to have the exclusive right of authorizing the reproduction of these 
works "in any manner or form". These are very broad terms, and are understood to 
cover all methods of reproduction, whether known - drawing, lithography, offset and 
other printing processes, photocopying, recording etc. - or unknown. Paragraph 3 
redundantly states that "Any sound or visual recording shall be considered as a 
reproduction for the purposes of this Convention". 
Paragraph 2, however, considerably limits the effectiveness of the reproduction right, 
by stipulating that "It shall be a matter for legislation in the countries of the Union to 
51 
permit the reproduction of such works in certain special cases, provided that such 
reproduction does not conflict with a normal exploitation of the work and does not 
unreasonably prejudice the legitimate interests of the author". This is one of the most 
controversial provisions in the Convention, and the result has been uncertainty as to its 
exact scope, divergent interpretation by the authorities in different countries, and very 
different arrangements in respect of reprography and private copying in particular, 
ranging for example from a straightforward ban on private copying to legalization 
without compensation of rightholders. 
The Rome Convention entitles performers to prohibit "the reproduction, without their 
consent, of a fixation of their performance" (Article 7). It also states: "Producers of 
phonograms shall enjoy the right to authorise or prohibit the direct or indirect 
reproduction of their phonograms" (Article 10). Broadcasting organizations are to 
enjoy the right to authorize or prohibit the reproduction "of fixations... of their 
broadcasts" on certain conditions (Article 13). 
As far as copyright is concerned the TRIPs Agreement refers back to the obligations in 
the Berne Convention. It also repeats word for word the provision in Article 10 of the 
Rome Convention, so as to give an exclusive right of direct or indirect reproduction to 
the producers of phonograms (Article 14(2)). The reproduction rights of performers 
(Article 14(1)) and of broadcasting organizations (Article 14(3)) are more limited than 
in the Rome Convention. 
2.2. Community law harmonizes the reproduction right of copyright holders only in respect 
of computer programs. There is no need for a detailed analysis of the Computer 
Programs Directive here; it will be enough to bear in mind that the protection of 
computer programs it envisages is laigely based on the right of reproduction. 
The Rental Right Directive introduces an exclusive right of direct or indirect 
reproduction for performers, the producers of phonograms and films, and broadcasting 
organizations. The protection provided here is more extensive than that in the Rome 
Convention. 
3. An assessment of the question from the Community viewpoint 
It will be useful to subdivide the questions which arise in the very complex study of 
the reproduction right. 
As regards the definition of "reproduction" right in a digital environment, the 
fundamental importance of the reproduction right suggests that a Community response 
may be needed. The definition should certainly be based on the approach taken in the 
52 
Computer Programs Directive. Thus the digitization of works or other protected matter 
should generally fall under the reproduction right, as should such things as loading on 
to the central memory of a computer. Without a harmonized response to these 
questions there may be difficulties with the Internal Market if a rightholder from 
another Member State with more protective legislation refuses to allow digital works 
or other protected matter to be brought into his territory where they originate in other 
Member States where digitization does not require the consent of the rightholder. 
The scope of the reproduction right is a separate question, because so many exceptions 
have been made by Member States under Article 9(2) of the Berne Convention. 
Careful consideration will be needed in order to determine which of these exceptions 
can continue. An example of the son of difficulty which arises is the question of 
private copying of matter disseminated in digital form. There will also have to be a 
review of the legality of private digital copying, given that the technology allows this 
kind of copying to be monitored, prevented or limited (see Section IX). 
A situation in which private copying is legal in some Member States and not in others 
will create serious difficulty. The fact that private copying is authorized in certain 
Member Grates means that some operators will be afraid to allow access to their 
services there. The ^chnical arrangements needed to control private copying cannot be 
made compulsory in Member States which authorize private copying, but will be 
required in other Member States. These differences will place barriers in the way of 
trade in the relevant equipment. 
The Commission takes the view that a degree of harmonisation will be needed to 
resolve these problems. The precise response will depend on the technical scope for 
controlling reproduction, and especially private copying. 
4. Questions 
1 ) Do you think that the digitization of works and other protected matter should 
be covered by a reproduction right? Would exceptions to the exclusive 
character of this right be justified? If so, what exceptions and why? 
2) Do you think that private copying and reprography of digitized works, other 
protected matter, or both, other than computer programs: 
• should be fully subject to this reproduction right; 
• should be subject to this reproduction right, except that a single 
copy would be permitted (as with the SCMS system); 
• should be authorized, with or without a system of remuneration? 
53 
SECTION IV: 
COMMUNICA TION TO THE PUBLIC 
Essential points 
This Section investigates the definition of "public" for the purposes of the right of 
communication to the public. The concept is of vital importance in order to determine 
the position of certain uses of protected matter in the information society. 
1. Introduction 
There is no precise definition of the concept. So far as the right of communication to 
the public is concerned, the concept of "public" is the key to the current discussion. 
The WIPO Glossary defines "communication to the public" as follows: "Making a 
work, performance, phonogram or broadcast perceptible in any appropriate manner to 
persons in general, that is, not restricted to specific individuals belonging to a private 
group. This notion is broader than publication and also covers, among others, forms of 
use such as public performance, broadcasting, communication to the public by wire, or 
direct communication to the public of the reception of a broadcast".1 
On the basis of this definition we can provisionally distinguish private use, which are 
in effect tolerated and so are not as a rule be caught by the right to authorize or 
prohibit, from those forms of use which are indeed caught by exclusive rights. 
The same does not apply to private copying, which is caught by the reproduction right. 
Private copying is therefore prohibited in certain Member States even if it is carried 
out for purely personal purposes. 
Private use need not necessarily be confined to cases where a person makes use of a 
work in his own home using equipment which is not linked up to a network. However, 
if it is to be accepted that a form of use may be private, and consequently unrestricted, 
even if more than one person takes part, the limits must be defined. 
The author's moral rights can be infringed even in private. It is simply more difficult 
WIPO Glossary of Terms of the Law of Copyright and Neighbouring Rights, Geneva 1980; 
ISBN 92-805-0016-3. 
54 
in this case, given the existence of laws on protection of privacy, to prove it and to 
enforce the moral rights of rightholders. 
It should also be noted that Article 9(2) of the Berne Convention draws a line between 
private use which could be described as "normal" on the one hand, and use which 
might be called an "abuse" and which infringes the economic rights of rightholders on 
the other, which is often extremely fine. In addition, given that digital technology will 
lead to so-called private use on such a large scale, it must be remembered that if the 
new forms of private use are not properly dealt with by the law on copyright and 
related rights then right holders may be heavily prejudiced and there could be serious 
consequences. 
The definition already quoted will be of assistance here, because it allows us to 
exclude a series of acts, including broadcasting, from the scope of private use. 
Of course the ultimate definition of "communication to the public" will have a great 
effect on public perceptions of the information society. The public already uses the 
Internet, or has at least heard talk of it, and imagines that it is to be given access to all 
the knowledge in the world free of charge, or at any rate for the cost of the call. Thus 
the definition of private use can be seen as defining the scope actually offered to the 
public. If it is too broad, rightholders will hesitate to allow their works to be used on 
the networks. If it is too narrow the public may well stay away from the information 
superhighway in disappointment. 
2. The present legal context 
2.1. The international conventions have never managed to defme the concept of 
"communication to the public" clearly. 
2.2. Community law does not define it either. Article 10 of the Rental Right Directive 
states that Member States may provide for limitations to related rights, one case listed 
being that of "private use". 
Member States are also free to provide for limitations on related rights which are of 
the same kind as those they provide for in connection with copyright. 
3. An assessment of the question from the Community viewpoint 
Community '.aw has not so far settled the question of the definition of "communication 
to the publi :.". As the information society advances it will be necessary to consider 
whether the permissible exceptions to the general Community rules will have to be 
tightened ap, and this will involve defining "communication to the public" in a 
uniform fashion. 
55 
The fact that particular activities should be lawful in certain Member States and not in 
others could cause difficulties for the functioning of the Internal Market. Some 
displacement of activity must necessarily result; the technical specifications of 
equipment and the requirements for the digitization of works or other protected matter 
might be different, and this would put barriers in the way of trade - programs to 
prevent certain acts, for example, might be necessary in some places and not in others. 
How, for instance, can we guarantee that the information society will operate smoothly 
and without obstacle if some Member States make transmission over the network 
subject to an exclusive right, while others leave it entirely free? 
The Commission takes the view that a Community solution should be found to the 
problem of communication to the public. The transmission technologies which will be 
used in the information society challenge the traditional understanding of the concept. 
4. Questions 
1) Under what conditions do you think that the following acts can be considered 
as forms of private use: 
• transmission over the network between two private persons; 
• transmission over the network between a number of private persons 
(e.g. bulletin board services); 
• transmission over the network between a private person and a firm; 
• transmission over the network within one or between several firms? 
2) In the case of transmission over the network between more than two private 
persons, do you think that the fact that the people concerned know ^ach other 
or belong to the same family should play any part in the definition of 
communication to the public? 
3) If transmission is point-to-point, how doej the nature of the persons 
communicating - private persons, firms, public bodies etc. - affect the 
classification of the act as communication to the public? 
4) Do you think that copyright and Related rights apply to the act of connecting a 
server which holds works protected by copyright to the network? If so, which 
rights apply? Do you know of any legislation which takes a position on the 
matter? 
5) What other tests or acts do you think should be looked at to determine whether 
or not there is communication to the public? 
56 
SECTION V: 
DIGITAL DISSEMINA TION OR 
TRANSMISSION RIGHT 
Essential points 
In the information society it will be possible to send works and other matter protected 
by intellectual property rights backwards and forwards over networks. The activity 
made possible by the technology is new, and is not expressly covered by the existing 
law. Lending and rental rights may be applied by extension to these digital 
transmissions, but, for reasons of clarity and legal certainty, legislation may still be 
necessary to confirm and to define how this should work. 
1. Introduction 
By comparison with analogue methods the technical scope for digital transmission or 
dissemination is so great, and the quality is so high, that the question of the law 
applicable to digital dissemination or transmission is one of the central questions of 
intellectual property law in the information society. Some categories of rightholder, 
notably phonogram producers, are demanding the introduction of a new exclusive 
right of digital dissemination or transmission, because they are afraid that their market 
may escape any sort of control. 
The extent of the right proposed has not been clearly defined, and we can try to delimit 
the concept by putting forward two extreme cases. Such a right might be understood 
broadly, and cover any transmission on a digital network, whether from one point to 
one point or from one point to many. Digital broadcasting would then be included. 
Particularly in order to avoid covering broadcasting, on the other hand, we might also 
restrict the term "digital dissemination or transmission" to point-to-point transmission 
only, or at least expressly exclude broadcasting. As these services transmitted from 
point-to-point are different from current point-to-multipoint broadcasting, since the 
consumer can access and interact with them, it seems justified to have a specific 
regime for digital transmission. 
From that point of view, "digital transmission" or "dissemination" would include 
transmission from a personal computer, or other digital unit belonging to a private 
person, or from a database, to one or more personal computers or other digital units 
belonging to private persons or firms. Thus a video-on-demand system, whereby 
57 
consumers ask for the cinematographic works of their choice to be sent to them 
electronically, would be covered. 
It has to be decided, therefore, how these categories of act should be classified, how 
they can be defined and how they should be treated- exclusive rights, equitable 
remuneration, or complete freedom. 
2. The present legal context 
2.1. This right of digital transmission or dissemination has still to be defined. The Berne 
Convention does indeed refer to "any communication to the public" (Article 11), but 
that has to mean that there is a receiving public, and not merely specific persons 
belonging to a private group. What is involved here is a form of initial transmission by 
cable. The Rome Convention covers only conventional broadcasting on the air. 
2.2. There are relevant provisions in Community law. The Computer Programs Directive 
states that if the "transmission" of a computer program necessitates its reproduction, 
the act of reproduction is to be subject to authorization by the rightholder (Article 4). It 
is reproduction which is subject to authorization rather than transmission itself. 
The provisions rm broadcasting in the Directives are covered in the section dealing 
specifically with that subject (Section VI). Rental right and lending right are also 
relevant in the present context. 
The Rental Right Directive defines rental right and lending right. It harmonizes both of 
them, declaring them to be exclusive rights, and defines their scone, their rightholders 
(authors, performers, producers of phonograms and films, and broadcasting 
organizations) and their exceptions. 
The Computer Programs Directive likewise provides for an exclusive rental right for 
computer programs (Article 4(c)). 
Both these Directives define the rental right in very broad terms. In the Computer 
Programs Directive "rental" means "the making available for use, for a limited period 
of time and for profit-making purposes, of a computer program or a copy thereof. 
Legislation currently in force, including the Computer programs Directive, should also 
be taken into account when dealing with the questions posed by certain specific types 
of commercial activity involving digital transmission. 
The Rental Right Directive defines "rental" as "making available for use, for a limited 
period of time and for direct or indirect economic or commercial advantage" 
(Article 1(2)). The very broad character of this definition is underscored in a recital 
58 
which states that it is desirable to exclude from "rental" certain forms of making 
available "as for instance making available phonograms or films... for the purpose of 
public performance or broadcasting". The extension of the rental right to the digital 
environment means that certain characteristics of the new services must be taken into 
consideration, and that there must be detailed reflection upon what constitutes 
legitimate use of transmitted elements. 
"Rental" of works or other protected matter as defined here, especially by opposition 
to public performance and broadcasting, clearly includes activities such as video on 
demand and other electronic forms based on point-to-point transmission. 
In contrast to rental, which is carried out with a view to gain, the Directive defines 
"lending" as "making available for use, for a limited period of time and not for direct 
or indirect economic or commercial advantage, when it is made through 
establishments which are accessible to the public" (Article 1(3)). "Lending", then, 
requires an "establishment which is accessible to the public", and transmission 
between private persons is not covered; the definition does, however, cover digital 
lending by establishments accessible to the public. 
In practical economic terms electronic rental of works or other protected matter is a 
competing activity which is essentially the same thing as rental from a shop, so that it 
seems reasonable to apply the same rights in both cases. That argument would 
indicate that the on-line consultation of a work from a public library comes to the 
same thing as borrowing a copy of the work. 
3. An assessment of the question from the Community viewpoint 
It is clear that the intellectual property law applying to digital dissemination or 
transmission will have to be harmonized. Without far-reaching harmonization, 
freedom to supply services cannot become a reality, because differences of treatment 
will necessarily place obstacles in the way of trade between Member States. 
We have just seen that rental and lending rights might well be applicable by extension 
to digital transmission. It would nonetheless seem desirable for the sake of clarity and 
legal certainty that this should be confirmed in legislation, and that such application 
should be spelled out in detail where necessary. 
Of course, the cultural and educational functions of bodies such as public libraries and 
universities, which have the aim of ensuring the widest possible dissemination of 
works arna data, must be reconciled with the legitimate protection of rightholders. 
59 
These entities play an important role in society. They are a link in the chain running 
from the author to the public. They permit knowledge to be disseminated and provide 
the widest possible access to the culture and to information. It is therefore essential 
that they be able to continue to meet their responsibilities in this new digital 
environment, with as few restrictions as possible. However, digital technology has led 
to a range of new techniques such electronic storage and transmission of documents, 
which will take on growing importance, especially regarding inter-library loans. 
These forms of use and new interactive possibilities could prejudice rightholders if 
they were not subject to an appropriate legal regime. It may well be that it will be 
necessary to reinforce the rights accorded to rightholders, especially regarding public 
loans. It is important to recognise the interests of the different parties concerned: 
authors must be able to control the use of their works, libraries must ensure the 
transmission of available documents and users should have the widest possible access 
to those documents while respecting the rights or legitimate interests of everyone. 
This problem will be generally considered in the Commission report which is due 
under Article 5(4) of the "rental" Directive (92/100/CEE). 
A separate question arises because the information superhighway will be transporting 
from point-to-point all sorts of works and other matter protected by intellectual 
property. Whatever the work - film, music, play etc. - it can be transported along the 
information superhighway only through the use of computer programs, and a part of 
these programs will always travel with the work being transported and will be 
downloaded along with it at the receiving end; but the legal arrangements governing 
these various works will not necessarily be the same. The differences between the law 
of computer programs and copyright law in general are particularly notable in the case 
of the right of reproduction. 
At this stage the Commission takes the view that the rental right could be applicable 
by extension to digital transmissions undertaken in the course of commercial activities. 
It must still be examined how the characteristics of certain commercial operations 
could be taken into account as regards the application of this right. The application of 
the lending right to electronic transmission should also be reviewed with a view to 
maintaining a balance between the interests of public libraries and those of 
rightholders. 
60 
4. Questions 
1) The Computer Programs Directive (91/250/CEE) and the Rental Right 
Directive (91/250/CEE) could be applicable by extension to electronic 
transmission from point-to-point. Given that possibility, do you think that 
certain elements should be adapted? If so, which ones? 
2) Would you be able to state the extent of the economic impact of the application 
of the rental and lending regime on rightholders and other parties? 
3) What would you say was the effect upon SMEs? 
61 
SECTION VI: 
DIGITAL BROADCASTING RIGHT 
Essential points 
Broadcasting has already been regulated, but there is a view that the digitization of 
signals has such far-reaching implications for copying by consumers that holders of 
related rights ought to have an exclusive right to broadcasting, rather than merely 
receiving equitable remuneration. 
1. Introduction 
For the purposes of copyright and related rights, there is a difference between 
communicating with a single person and communicating with a large number. From 
that viewpoint, communication with a single person or point-to-point does not 
constitute broadcasting. 
Nonetheless, it should be pointed out straight away that although broadcasting is a 
long-established activity, it is nevertheless closely bound up with the subject of the 
information society. Digital broadcasting allows broadcasts to be made which may 
compete with on-line services. The practical consequences cf digital broadcasting for 
both rightholders and consumers will be different depending on whether the broadcast 
consists of a programme divided into sections or a programme consisting solely of 
music and not interrupted by advertising or other announcements. Consideration must 
also be given to the quality of broadcasting permitted by digital technology and, 
therefore, the quality of the copies which the consumer could make of the broadcast 
works. 
The recording industry feais that consumers will be able to make copies of such good 
quality that the CD market will suffer. It is therefore calling for a right to authorize or 
prohibit the digital broadcasting of recordings. At present producers of phonograms 
and performers have only a right to equitable remuneration. The question of a 
bruadcasting right is equally acute for film producers and performers in the sector. 
It has also been argued that broadcasting, which in the past was considered a 
secondary use of a work, has now acquired primary impovtance as a form of 
exploitation, and that its treatment in law should change in consequence. 
62 
2. The present legal context 
2.1. The Berne Convention does not define broadcasting. It gives the authors of literary 
and artistic works rights specific to certain types of work. In principle these rights are 
exclusive rights, but under Article llbls(2) compulsory licences can be imposed on 
authors. The Rome Convention does not provide for an exclusive broadcasting right 
for performers and the producers of phonograms. They are entitled only to an 
equitable remuneration, under Article 12. 
2.2. Community law refers to broadcasting in several places. "Broadcasting" in the 
Directives means "the initial transmission by wire or over the air, including that by 
satellite, in unencoded or encoded form, of... programmes intended for reception by 
the public". Communication services providing pieces of information or other 
services point-to-point and on demand such as photocopying, electronic databases and 
other similar services are not covered. 
The concept of broadcasting in the Satellite and Cable Directive matches this 
definition: it refers to "an initial transmission from another Member State, by wire or 
over the air, including that by satellite, of television or radio programmes intended for 
reception by the public" (Article 1(3)). It also states that "If the programme-carrying 
signals are encrypted, then there is communication to the public by satellite on 
condition thr.t the means for decrypting the broadcast are provided to the public by the 
broadcasting organization or with its consent" (Article l(2)(c)). 
In order to include all broadcasts actually received by the public, the same Directive 
covers all satellites where "the circumstances in which individual reception of the 
signals takes place" are "comparable" to those which apply in the case of a direct 
broadcasting satellite. In other words it is not the technical features of the satellite 
which are decisive, but the outcome of the act of broadcasting: it must be possible for 
the public to receive the broadcast. 
Consequently, Community law at present considers a broadcast to be any transmission 
to the public other than individualized services on demand, whatever the technology 
used: wire, radio, satellite, analogue or digital. 
There has also been at least partial harmonization of authors' and rightholders' 
broadcasting rights in the Community. 
63 
The Satellite and Cable Directive requires Member States to make provision for an 
exclusive right to authorize the communication to the public by satellite of copyright 
works (Article 2). The principle is that the right may be acquired only by agreement, 
but there are exceptions (Article 3). 
The Rental Right Directive gives performers and phonogram producers a right to an 
equitable remuneration "if a phonogram published for commercial purposes, or a 
reproduction of such phonogram, is used for broadcasting by wireless means or for 
any communication to the public" (Article 8(1)). The harmonization required by this 
Article 8 is expressly stated to be a minimum only. Member States remain free to 
provide for more far-reaching protection. 
Broadcasting organizations are also to be given a number of exclusive rights over their 
broadcasts: a fixation right (Article 6), a right of reproduction of fixations (Article 7), 
a rebroadcasting right (Article 8), and a right over the distribution of fixations 
(Article 9). 
3. An assessment of the question from the Community viewpoint 
The question falls within the competence of the Community provided the broadcast is 
a cross-border one. The introduction of exclusive broadcasting rights in some Member 
States and not in others only would seriously distort competition in cross-border 
broadcasting, and would at once provoke a displacement of broadcasting activities. 
The reasoning is the same as that which led to the enactment of the Satellite and Cable 
Directive. 
The problem is aggravated by compression techniques which allow far more 
programmes to be broadcast. The limited number of frequencies available will now no 
longer be a valid argument for restricting broadcasting activities. But the extent of the 
problem can vary depending on the way in which the broadcast is made. The question 
is especially relevant to related right holders, because their rights are not exclusive. 
In the case of conventional programmes - for example in the field of music where a 
presenter plays records and supplies comment between numbers, with interruptions for 
advertising - it is unlikely that the related rightholders fear is justified. There will be 
too much interruption for even the less critical consumer to consider this an alternative 
to purchase. 
Continuous music and other audio-visual programmes, on the other hand, may pose a 
problem. This might become really serious if broadcasters were to broadcast whole 
records or films in succession, following a timetable worked out beforehand and 
circulated among consumers. The consumer would only have to check at what time the 
64 
material of his choice was to be broadcast; he could then copy it in full free of charge. 
Indeed systems for numbering works and recordings could be employed, using 
automatic systems built into the consumer's receiver to enable him to program his 
copying. There are also plans to run the same programme on different channels at 
different times, which increases the danger. 
Thus two types of broadcasting which are covered by the same definition for purposes 
of copyright law would in fact produce very different consequences. 
At this stage the Commission takes the view that further thought should be given to 
the need for a review of the present balance of rights in this area. Interested parties are 
accordingly asked to submit observations and irguments. 
4. Questions 
1) In your opinion, will digital broadcasting, which allows a larger number of 
channels, increase the volume of cross-border broadcasting? Do you think this 
possibility justifies Community intervention, or is it still only theoretical? 
2) Do you think that digital broadcasting is a real threat to the holders of related 
rights, who do not currently have an exclusive broadcasting right? Is the 
introduction of exclusive digital broadcasting rights for phonogram and film 
producers and performers in these sectors necessary, or possible on certain 
conditions, or to be ruled out altogether? 
3) Do you think that distinctions between methods of dissemination can facilitate 
a solution (for example by including only certain forms of digital broadcasting, 
such as cable transmission)? 
4) Do you think that a tightening up of the reproduction right in the private 
sphere, which could be strictly enforced by means of technical arrangements 
preventing copying by receivers, would be sufficient to avoid problems of 
large-scale copying? 
65 
SECTION VIL-
MORAL RIGHTS 
Essential points 
In an interactive environment such as that of the information society, where it will be 
very easy to modify and adapt existing works, one vital consideration will be the 
author's moral rights, including the right to object to any unauthorized modification of 
is work and to claim the right of author's paternity. These rights are handled very 
differently in different legal systems, and give rise to serious controversy. 
1. Introduction 
The author's moral rights principally protect his entitlement to object to any 
unauthorized modification of his work, and to claim authorship of it. The work must 
not be modified without the author's consent, at any rate in a way prejudicial to his 
honour or reputation. The right to claim authorship prevents anyone else from 
claiming to be the author of the work. 
The right to object to modification is similar to the right of adaptation; the right of 
adaptation is also an exclusive right, but is an "economic" right rather than a "moral" 
one. 
Moral rights are thus a powerful component in copyright, and to a lesser extent in the 
rights of performers. One aspect of the information society is that total digitization of 
works and other protected matter combined with interactivity over networks means 
that it is becoming easier and easier to transform works, to colourize them, to reduce 
them and so on. The time is coming when anyone will be able to change the colours in 
a film, or replace the faces of the actors, and return the modified film to the network. 
This capacity to amend works in whatever way and to whatever extent one likes is 
regarded in some quarters as one of the great advantages of digitization. The creators 
of works, however, are greatly concerned that this technical capacity will be used to 
mutilate their works, and are asking for moral rights to be strengthened. 
2. The present legal context 
2.1. Moral rights fall under Article 6b,s of the Berne Convention, which states that 
"Independently of the author's economic rights, and even after the transfer of the said 
rights, the author shall have the right to claim authorship of the work and to object to 
any distortion, mutilation or other modification of, or other derogatory action in 
relation to, the said work, which would be prejudicial to his honor or reputation". 
66 
Thus the author continues to enjoy his moral rights even after he has transferred his 
economic rights. 
2.2. The Community secondary legislation in force does not affect moral rights. The 
Computer Programs Directive, for example, provides that "the employer exclusively 
shall be entitled to exercise all economic rights in [a computer program], unless 
otherwise provided in the contract" (Article 2(3)), but makes no rule regarding moral 
rights. 
The Terms of Protection Directive states that "This Directive shall be without 
prejudice to the provisions of the Member States regulating moral rights" (Article 9). 
In its judgment in Phil Collins (Joined Cases C-92/92 and C-326/92, 20 October 1993) 
the Court of Justice defined the specific subject-matter of copyright and performers' 
rights. "The specific subject-matter of those rights, as governed by national legislation, 
is to ensure the protection of the moral and economic rights of their holders. The 
protection of moral rights enables authors and performers, in particular, to object to 
any distortion, mutilation or other modification of a work which would be prejudicial 
to their honour or reputation" (paragraph 20). 
3. An assessment of the question from the Community point of view 
In the Phil Collins judgment just referred to the Court said that "the exclusive rights 
conferred by literary and artistic property are by their nature such as to affect trade in 
goods and services and also competitive relationships within the Community. For that 
reason, and as the Court has consistently held, those rights, although governed by 
national legislation, are subject to the requirements of the Treaty and therefore fall 
within its scope of application" (paragraph 22). 
It is worth pointing out at the outset that morai rights were among the points needing 
study which were listed in the Commission's work programme for 1991. A hearing of 
parties with an interest in moral rights was held on 30 November and 
1 December 1992. 
The hearing clearly showed the sensitive character of the question of moral rights. The 
opinions expressed diverged widely. The representatives of authors and performers 
generally wanted strong moral rights, while the representatives of publishers and the 
press, producers, broadcasters and employers were hostile. 
67 
The latter groups argued that moral rights, being an expression of the thinking which 
saw copyright in terms of personal rights, and being untransferable, inalienable and 
perpetual, were a major source of uncertainty in the exploitation of works, and 
consequently discouraged investment. 
Authors and performers rejected this argument. A large majority of their 
representatives also claimed that disparities in the legislation on moral rights were 
becoming particularly acute with the development of new technologies: these 
permitted ever-greater manipulation of works and other protected matter, which could 
then be transmitted electronically throughout the Internal Market, especially by means 
of electronic publishing, data banks or telecommunications networks.1 
An important point which emerged in the course of the hearing was that moral rights 
were in fact rarely invoked in order to prevent the exploitation of a work. The reason 
was that in areas where the point was a sensitive one the parties came to an 
arrangement which avoided such situations. In other areas, such as the cinema, the 
principal director had to reach agreement with the producer before the film was made, 
which avoided most of the problems that might otherwise have arisen at a later stage. 
To put it another way, the hearing showed that at the present time moral rights did not 
pose any real problems as far as the Internal Market was concerned. 
With the arrival of the information society the question of moral rights is becoming 
more urgent than it was. Digital technology is making it easier to modify works. The 
Commission believes there is a need for an examination of the question whether the 
present lack of harmonization will continue to be acceptable in the new digital 
environment. 
4. Questions 
1) Do you think that the differences between the laws of the Member States are 
such that the rules on moral rights should be harmonized? Would 
harmonization be justified in the present situation? 
2) Could it be decided that problems of moral rights are to be resolved by 
contract? When material is placed on the network, for example, or even when it 
is digitized, the author might agree to certain types of modification such as 
dubbing, subtitling, reformatting etc. 
Report on the hearing. 
68 
3) Could the very fact that the author has agreed to digitization be taken to give 
rise to a presumption that he has agreed to certain modifications? 
4) Do you think that the acceptability of modifications could be defined in 
collective agreements between authors and performers on the one hand and 
producers and publishers on the other? 
5) Do you think that solutions should be negotiated globally or sector by sector 
(cinema, newspaper publishing, libraries, museums, etc.)? 
PART THREE 
QUESTIONS ON THE EXPLOITATION OF RIGHTS 69 
SECTION VIII: 
ACQUISITION AND 
MANAGEMENT OF RIGHTS 
Essential points 
The information society will offer new opportunities to exploit and to enjoy protected 
works and other protected matter. The management of rights will have to evolve, 
however, and to adapt to the new environment, to ensure for example that the creation 
of multimedia works using music, words, photographs, films etc. is not obstructed by 
long and costly procedures for the acquisition of rights. Rightholders and rights 
managers are asked to set up "one stop shops" to facilitate access to works and other 
protected matter. 
1. Introduction 
a) Nature of rights 
Copyright and related rights are exclusive rights, which means that the first holder of 
the right - the author, the performer, the producer of a phonogram or film or the 
broadcasting organization - has power to authorize or to prohibit the use of the work or 
other protected matter. These rights take many different forms, and an authorization 
given for one type of use does not mean that any other use is authorized too. An author 
who authorizes a public performance of his play does not thereby prejudice his 
entitlement to authorize or prohibit the reproduction of the text of the play. These are 
two different rights, which the author is free to exercise independently. Rightholders 
are free to exploit their works and other protected matter in whatever way they believe 
will be in their best interests. 
There is an exception to the general rule in some cases, where the rights of the author 
or other rightholder are limited to a right to remuneration: the rightholder cannot then 
object to a particular use of his work or of other protected matter, but the law provides 
for the payment of equitable remuneration. There is an example in Article 8(2) of the 
Rental Right Directive: equitable remuneration is to be paid where a recording 
published for commercial purposes is used for broadcasting "or for any 
communication to the public". 
70 
The usual reason for the grant of a right to remuneration, rather than an exclusive 
right, is that individual management would not be possible in any event, given the 
number and type of uses involved, and that in the interests of users the legislature 
wanted to facilitate utilization. 
b) Methods of rights management 
It may be useful to summarize the ways in which intellectual property rights are 
administered now. The methods used are different from one branch to another, and 
from one type of rightholder to another. The account which follows is intended only 
by way of indication. 
• The most straightforward method for managing intellectual property rights is 
that whereby the first rightholder, that is to say the author, performer or 
producer, keeps control of the rights, and grants licenses to interested parties 
who apply to him. Obviously the holder must have an exclusive right. The 
producers of cinematographic works, for example, generally manage their 
rights themselves, without going through intermediaries. 
The first holder, however, is not always the person who manages the rights. In 
some areas rights are managed by publishers, even though they are not 
designated by law as the holders of copyright or a related right. The authors of 
literary works generally assign their rights to be managed by their publishers. 
Similarly, a distributor or producer may be assigned the rights for a particular 
geographic area by a producer in another country or an area where a different 
language is spoken. 
• In some cases the producer's position is rendered stronger by the fact that the 
law presumes that certain rights are assigned to the producer. There may be a 
presumption, for example, that an author or performer who signs a contract 
with a producer has assigned his rights. The presumption may be rebuttable, 
meaning that a party is entitled to show that he did not wish to assign a 
particular right; or it may be irrebuttable, meaning that proof to the contrary is 
of no avail. This mechanism constitutes a more or less automatic method for 
assigning rights. 
• Another major option for the administration of copyright and related rights is 
management by a collecting society. This arrangement has grown steadily in 
importance. For a large proportion of creative work it can be regarded as the 
traditional form of management, and it is mandatory in some cases. It applies 
for example where compulsory licences are imposed on rightholders or where 
the rightholders have only a right to remuneration. Producers have entrusted 
71 
the administration of cable retransmission rights to AGICOA, the Association 
for the International Collective Management of Audiovisual Works; it was felt 
that individual management would be too difficult to operate in this case. 
Management by collecting societies plays a particularly important role in the 
music industry, where it would be hopeless for an author or performer to try to 
control and manage rights in a musical work or recorded performance on an 
individual basis. Traditions of management by collecting societies nevertheless 
vary from one sector to another, from one class of rightholders to another and 
from one Member State to another. 
c) Consequences of the present system in the information society 
It will be gathered from the preceding that the author of a multimedia work who 
wishes to make use of existing works will have to obtain the authorization of each of 
the authors or related right holders. This is not a radically new situation when one 
considers that collecting societies have already had to rise to the management of so-
called complex or composite works. However, digital technology, by multiplying the 
possibilities of creating such works, and of multimedia works in general, probably 
means that a rationalisation of the copyright administration is increasingly necessary. 
A great many existing works or other protected matter may be used in the creation of 
one CD-ROM or CD-i, so that the organizer will have to secure a great many 
authorizations. The absence of just one of them may prevent publication of the whole 
multimedia work. 
The question of the protection of the rights in literary and artisti : property is thrown 
into a new light by the number of authorizations needed for the creation of a 
multimedia work. It may also be that the total price of rights negotiated by 
mechanisms different from one work or one performance to mother may ultimately be 
judged too high. It is fair to ask whether rights managers hav.i afr-ady taken account of 
the special case of the creators of multimedia works when tney : ^t the financial terms 
of licenses, and whether the present scales are compatible with the utilization of works 
and other protected matter to be expected in the information society. 
Copyright and related rights must not be considered as an obstacle to the creation of 
multimedia products. It must be ensured that it is impossible for producers and editors 
to use the management of multimedia works as a pretext for not obtaining the 
72 
necessary rights, which would place the fruits of investment at risk and would in the 
long term destroy all creativity. 
Some users are openly arguing for the :.ntroduction of compulsory licenses, which they 
say is the only way to resolve what they see as the "problem" of licensing. 
It should be pointed out at this stage that authors, performers, and the producers of 
phonograms and films have a great interest in seeing their works and other protected 
matter used as much as possible, since their own income and the return on their 
investments depend on it. Generally speaking, therefore, it is to their advantage that 
potential users should not encounter unreasonable difficulty in identifying the source 
which can grant or refuse them a license. In any event difficulty in identifying a 
rightholder cannot be invoked to justify a reduction in protection. 
Given all the replies of the interested parties in respect of the hearing in July 1994, the 
difficulty of obtaining the authorizations needed to include works and other protected 
matter in a database should not be considered a justification for the extension of 
compulsory licences, or any other weakening of intellectual property rights. Other 
forms of rights acquisition ought to be envisaged. 
2. The present legal context 
2.1. The international conventions give very few clear indications regarding the 
management and acquisition of copyright and related rights. Such provisions as do 
exist are of a piecemeal nature. Article 2(6) of the Berne Convention provides that 
"protection shall operate for the benefit of the author and his successors in title", which 
clearly shows that assignments or licenses are not to reduce the protection established 
by the Convention. 
There are two other provisions of the Berne Convention which are worth mentioning; 
they concern particular cases. Article 14bis(2)(b) provides for a presumption that the 
rights to exploit a cinematographic work have been assigned to the producer. 
Article 15(3) provides that the publisher of an anonymous work is deemed to represent 
the author. Throughout the countries of the Berne Union, therefore, the publisher of an 
anonymous work may invoke the rights of the author without having to provide any 
further proof that he represents him. 
73 
2.2. Community law has several things to say about the acquisition and management of 
rights. 
The rights harmonized at Community level are as a general rule exclusive rights. 
Community law expressly provides that they may be transferred, assigned or subject to 
the granting of contractual licenses. The rule is laid down in the Rental Right 
Directive, and applies to the rental and lending right (Article 2(4)), the reproduction 
right for holders of related rights (Article 7(2)), and the distribution right for the same 
rightholders (Article 9(4)). This allows management to be entrusted as far as possible 
to collecting societies, publishers and producers. It makes it possible for the rights to 
be exploited properly in all areas of intellectual creation. 
The Community legislature has nevertheless sought to protect the weaker party to such 
a contract against complete dispossession, by providing that where an author or 
performer has transferred or assigned his rental right he is to "retain the right to obtain 
an equitable remuneration for the rental... The right to obtain an equitable 
remuneration for rental cannot be waived by authors or performers" (Article 4(1) and 
(2)). 
As well as this broad scope for the transfer or assignment of exclusive rights, the 
Community legislature has made provision for the introduction of a presumption that 
rights have been assigned, so as to facilitate the exploitation of works. The Rental 
Right Directive establishes a rebuttable presumption that a performer has assigned his 
rental right to a film producer (Article 2(5)), and allows a similar presumption in the 
case of authors (Article 2(6)). It allows Member States to establish stronger 
presumptions of assignment of performers' rights to their producers, on condition that 
an equitable remuneration is provided for (Article 2(7)). 
The Community legislation refers to management by collecting societies in several 
places. There is a definition of a "collecting society" in the Satellite and Cable 
Directive (Article 1(4)): "For the purposes of this Directive 'collecting society' means 
any organization which manages or administers copyright or rights related to 
copyright as its sole purpose or as one of its main purposes." The definition is here 
stated to be for the purposes of the particular directive only, but it can be taken as a 
point of departure in a general examination of the role of collecting societies. 
The legislature has approached the question of management by collecting societies on 
a case-by-case basis- Article 13 of the Satellite and Cable Directive, for example, 
makes express provision for it, while other Directives are silent - and has left it to the 
74 
law of the Member States to regulate the activities of collecting societies as such. But 
the Directives do provide indications of the desirability of collecting societies. 
As a general rule the legislation does not make management by collecting societies a 
requirement; this is a question for the authorities in the Member States. Under the 
Rental Right Directive the right to an equitable remuneration may not be waived 
(Article 4), but "The administration of this right... may be entrusted to collecting 
societies representing authors or performers" (paragraph 3). Member States may 
impose this form of management (paragraph 4). Member States are accordingly free in 
two respects. They may provide for administration by collecting societies, and if they 
do so they are free to make it compulsory or voluntary. 
There is an exception to this rule in the case of cable retransmission. Article 9(1) of the 
Satellite and Cable Directive states that "Member States shall ensure that the right of 
copyright owners and holders of related rights to grant or refuse authorization to a 
cable operator for a cable retransmission may be exercised only through a collecting 
society." Recital 28 makes it clear that this is indeed an exception to the general rule; 
the aim is "to ensure that the smooth operation of contractual arrangements is not 
called into question by the intervention of outsiders holding rights in individual parts 
of the programme". 
Special mention should be made here of the Computer Programs Directive, which 
provides that "Where a computer program is created by an employee in the execution 
of his duties or following the instructions given by his employer, the employer 
exclusively shall be entitled to exercise all economic rights in the program so created, 
unless otherwise provided by contract" (Article 2(3)). This clause too is an exceptional 
one, because it gives the employer a monopoly in the management of the rights in the 
computer program. It must be said that in this area direct management of rights is the 
rule. All companies which write computer programs administer their products 
themselves. Collecting societies are unknown. 
An assessment of the question from the Community viewpoint 
There are several aspects of the acquisition and management of rights which have 
important implications for the Internal Market. This is the case especially where 
particular arrangements have been made mandatory in particular Member States. 
Barriers may arise if other Member States reject the same obligations: an example 
might be an irrebuttable presumption of assigmnent or compulsory administration by a 
collecting societv. 
In terms of copyright and related rights the arrival of the all-digital age may facilitate 
rights management in some areas. The scope it offers for tracing and monitoring use in 
general, and private copying in particular, constitutes an opportunity which ought to be 
grasped at once. Rather than having to think in terms of a generalized right to 
remuneration, therefore, we may, if systems of this kind become a reality, be moving 
towards a more and more finely tuned and individualized form of rights management. 
But this will happen only if the traditional rights managers, namely the collecting 
societies, producers and publishers, realize quickly how their role has to change. They 
ought to be encouraged to do this. 
At the hearing of interested parties on 7 and 8 July 1994 the Commission departments 
put forward questions regarding the administration of rights in the information society. 
One question asked whether the role of collecting societies needed to be reviewed in 
the context of the information society; the answers given varied with the particular 
organization's own experience, but some broad tendencies can be discerned. 
In general it does not seem that intervention on the part of the Community authorities 
is regarded as desirable at this stage. Participants often accepted that the collecting 
societies would have to evolve, but felt that they should be left to do so themselves, as 
they had always done. Some participants were strongly of the opinion that rights to 
equitable remuneration would no longer be justified in the information society, and 
that a return to individual management would be possible. 
It was generally felt that management by collecting societies should continue to be 
voluntary. The Commission side put questions regarding the introduction of automatic 
schemes of management or compulsory recourse to a collecting society in order to 
facilitate management in the case of multimedia products; the parties represented 
replied almost unanimously that any system of compulsory licences should be 
avoided. They were often prepared to accept the idea of some sort of centre for rights 
management, but said that the establishment of such centres should to be voluntary, as 
should membership, and that the possibility of individual rights management should 
remain open. 
76 
It may be worth pointing out that in France the several authors' societies1 have decided 
to pool their resources and have set up a scheme including all their repertoires. Each 
of the different societies represents different categories of works. The new body, 
SESAM, is to ensure the respect of the exclusive rights of the authors to the 
exploitation of their works; it will thus provide an answer to the producers and editors 
who are confronted by the need to obtain multiple authorisations in view of the many 
rights used in respect of existing or original works when those works are reproduced in 
multimedia programs . 
It is reasonable to suppose that certain alliances would be a major step forward for 
collecting societies, which are currently organized by category of work or class of 
rightholder (e.g. authors, performers etc.). To allow centralized management or 
administration of the rights over all works, performances and other protected matter 
incorporated into multimedia works, the collecting societies and other rights managers 
ought to be encouraged to set up joint bodies allowing a simplification of right 
management. 
Alliances under the form of a "one stop shop" would give authors, performers and also 
editor-producers, a tool which would allow them to identify the origin of very diverse 
works, by bringing together the repertoires which might be valuable to the new 
technologies. Users could obtain information which interested them, such as the level 
of the fees and the rights given. Such provision of information could be possible if 
different societies operated together and combined their databases, and systems of 
identification were progressively introduced. Both pre-existing and new works which 
might be integrated into multimedia products must therefore be on offer. 
Uniting the available information would be an appropriate way to ensure the right 
environment for creativity in the multimedia age, since it would increase the 
transparency and efficiency of the current system. Increasing transparency in such a 
way can only benefit the interested commercial parties, the rightholders just as much 
as the users. That does not mean that right management should be taken away from 
the individual and collectivised, simply that the identification of individual rights 
would be centralised. This "one stop shop" intermediary would not replace the 
collecting societies. 
Société des auteurs dans les arts graphiques et plastiques (ADAGP); Société des auteurs et compositeurs 
dramatiques (SACD); Société des auteurs, compositeurs et éditeurs de musique (SACEM); Société civile des 
auteurs multimedia (SCAM); and Société des auteurs des arts visuels (SPADEM). 
77 
Interested bodies are also discussing the possibility of moving towards more 
centralised management, especially by way of a "clearing house". 
Identification opens up the possibility of technical centralisation, especially by 
creating interconnections of the identifying files, and that could result in a 
simplification of what is required to obtain authorisation and certainly a reduction in 
the cost of fee administration. Rightholders would be able to use a central body as an 
intermediary when assigning their rights over multimedia use. That body could 
negotiate contracts and could, where appropriate, charge fees to users with a view to 
channelling them to rightholders. The decision to move towards such systems can 
only come from the professionals themselves. 
Even if certain management aspects were centralised, that would by no means exclude 
the possibility of going back to more individualised management. 
Individual contracts between the different parties must in any case therefore remain 
possible, as must individualised licences; each rightholder would determine the price 
to be paid to him for the rights. The parties' freedom of contract must be respected. 
It must be remembered that digital technology will mean more and more frequently 
that the transmission of the data to the user will also include the necessary 
authorisations for the purposes of copyright and related rights. In such situations, each 
use will be dealt with individually. 
It is, however, clear that the transparency and effectiveness of the systems of 
management are most important in order to ensure the healthy development of the 
information society. 
Obviously both the agreements establishing such links and the actual administration of 
the rights will have to comply with the competition rules of the EC Treaty. A major 
consideration here will be the extent of the territory for which the joint bodies grant 
licences, and especially the management itself cf the rights. 
The competition rules are fundamental, but there is no reason why they should be in 
contradiction with the idea of centralized schemes, at least so far as the creation of 
"one stop shops" are concerned. 
At the hearing held on 7 and 8 July 1994, interested parties were strongly opposed to 
the introduction of compulsory licenses. The Commission fully shares this point of 
view. Not only does it see no valid grounds for the general imposition of compulsory 
licenses for the creation of multimedia works, or for circulating protected works and 
other protected matter on the information superhighway, but it would argue that 
compulsory licences, if introduced on a national basis, would necessarily cause 
difficulty with the circulation of works and other protected matter. Of course, that does 
78 
not mean that the collecting societies, and even rightholders who have not combined 
forces, could not be obliged to grant licences under Article 86 of the Treaty of Rome. 
The Commission takes the view that the emergence of digital technology is likely to 
change the shape of rights management in some respects. Centralized schemes for the 
administration of rights, which would be voluntary in character, would be an 
appropriate response to the information society. It would be a matter for interested 
parties themselves to set up such schemes. While rightholders should be left a broad 
measure of freedom, the Commission feels that the regulatory framework should be 
examined in order to ensure that the new methods adopted do not fragment the market 
but rather help, respecting the principles of transparency and non-discrimination, to 
facilitate the acquisition of rights in a multimedia context. 
4. Questions 
1) What form should be taken by centralized schemes set up by rightholders and 
managers? Would a "one-stop-shop" system be desirable or indeed sufficient 
to deal with the demands of the information society? 
2) Should these centralized schemes be confined to issuing licences for the 
creation of multimedia works, or should they become general mechanisms? 
3) Do you think that competing schemes, that is to say schemes covering the same 
rights, can coexist in the same Member State, in the Community as a whole or 
at world level (these might cover separate repertoires, or perhaps even identical 
repertoires)? How could such competition work in practice? 
4) Assuming that the information society will operate on a world-wide basis, do 
you think that the licenses granted by a scheme or schemes of this kind will be 
or should be world-wide licences? 
5) Do you think that licences for a more limited territory will continue to be a 
possibility? 
6) Do you think that alongside the existing competition rules the Community 
legislation should lay down guidelines for collecting societies or centralized 
management schemes? If so, what sort of rules are needed: a code of conduct 
regulating competition between societies or schemes, rules governing relations 
between societies or schemes and their members, or both? 
79 
SECTION IX 
TECHNICAL SYSTEMS OF 
PROTECTION AND 
IDENTIFICATION 
Essential points 
Digitization allows works and other protected matter to be identified, tattooed, 
protected and automatically managed, provided the appropriate systems are installed. 
It would appear necessary for these systems to be introduced and accepted at 
international level if the information society is not to operate to the detriment of 
rightholders. 
1. Introduction 
The digitization of works and other protected matter is both an opportunity and a 
serious danger. It allows material to be stocked, accessed and used far more easily than 
before; this opens up new markets, with the inevitable corollary that-it creates new 
scope for piracy and the incentive to engage in it. But digital technology and the 
growing capacity to process data which it has provided will also permit better 
protection of works and other protected matter provided systems are installed rapidly 
which have the agreement of everyone - rightholders, equipment manufacturers, the 
distributors of works and other protected matter, and network operators. Two classes 
of question arise. The first is the systematic identification of works and other protected 
matter. Publications of a literary nature all carry an ISDN number which allows them 
to be identified. A system of identification of this kind could be set up covering all 
works and other protected matter; the identification tag might contain information on 
the work only, or much more complete information on the rightholders and even the 
terms of the licence. A code of this kind, known as the International Standard 
Recording Code or ISRC, has been established for sound recordings. Work is in 
progress in other areas. 
By resorting to these technical identification systems, it would be possible to facilitate 
the collection and distribution of the fees due to rightholders. That would be the case 
if the systems for identifying works and other protected matter, as well as data on right 
ownership, were linked to the system used for charging for network access or for 
services available at a distance, and for the administration of the corresponding 
revenue, while respecting the rules on the personal privacy of users. In effect, this 
revenue normally includes the fees in respect of the original right which go to 
copyright holders. Such systems already exist for certain purposes, but commercial 
agreements between operators would be necessary for such systems to become 
general. In Europe, where a significant number of operators will be involved in cross-
border provision of services, it is possible that such systems require the adoption of 
regulatory decisions and technical standards. 
80 
Similarly, a detailed examination will be necessary of the questions of protection of 
users' privacy which are raised by the fact that the network operators will be collecting 
and compiling precise details about the use of information and cultural services by 
each individual consumer. 
The tattooing of digitized works and other protected matter is also under study. Some 
digital marking systems, such as Cyphertech, already exist. Each component in the 
program contains a digital distinguishing mark which receivers can receive and decode 
in real time. This will allow automatic management systems to be set up for uses such 
as broadcasting, where it will be possible to determine the time for which the work or 
other protected matter has been used to within several seconds. 
The second central concern is the installation of these systems of protection and other 
systems in the equipment, in order to obtain the full benefit of the coding system. This 
Paper does not seek to consider the question of systems allowing operators to restrict 
the reception of a service, nor the possible need of legal protection to deal with illicit 
reception, because they are being dealt with in a separate green paper. Systems such as 
the Serial Copyright Management System or SCMS, on the other hand, which prevent 
a second copy being made privately from the first copy, are essential here. 
In the same way, if the systems sold to consumers do not allow for the reading of 
codes, it will not be possible to establish schemes of individual invoicing. 
There is also another aspect which can only be considered briefly since it does not 
directly affect copyright and related rights; that is the matter of the security of 
transmissions over the network. At the moment, data and other matter circulating on 
the network are no more secure than telephone calls. For the most part that is 
sufficient. It could, however, be possible that that would not be true for protected 
works and other matter. It would become more difficult to monitor the way in which 
the copyright and other related rights are exercised and remunerated, if the networks 
do not dispose of a satisfactory security system for the transmissions. In addition, 
even though the issue of the security of transmissions over the network is distinct from 
those of identification and protection, it seems important that the debate upon the 
question of the former should also encompass the aspects affecting the protection of 
copyright and related rights. 
81 
2. The present legal context 
2.1. The international conventions do not at present cover these questions. But they have 
been raised in the negotiations going on in WIPO on a possible protocol to the Berne 
Convention and a possible new instrument for phonogram producers and performers, 
at least in part. 
2.2. Community law has already touched on the question of technical measures of this 
kind: under Article 7(l)(c) of the Computer Programs Directive, Member States are to 
provide appropriate remedies against persons putting into circulation, or possessing for 
commercial purposes, "any means the sole intended purpose of which is to facilitate 
the unauthorized removal or circumvention of any technical device which may have 
been applied to protect a computer program". Article 7(3) then makes it clear that 
"Member States may provide for the seizure of any means referred to in 
paragraph 1(c)". 
Thus Community law does not require the introduction of technical systems for the 
protection of computer programs, but it does protect those who install such systems by 
making it unlawful to put pirate decoding or other equipment into circulation or to 
possess it for commercial purposes. 
3. An assessment of the question from the Community viewpoint 
The importance of technical systems for identification, tattooing and protection has 
been recognized for a long time at Community level. Not only does the Computer 
Programs Directive provide a basis for measures to combat piracy, but the question of 
the encryption of broadcasts as such is currently under study, and is to be the subject 
of a separate green paper. 
The CITED programme should be mentioned here; it is financed by the Commission 
under the Esprit programme. CITED is based on the needs of the information industry 
in the broad sense, and is intended to safeguard copyright and related rights in all 
works and other protected matter which may be stored or transmitted digitally. The 
purpose is to establish a scheme of protection in order to calm the fears of rightholders 
and to help to ensure that all the "information" available is placed at the disposal of as 
broad a public as possible. 
In its first phase the project excited considerable interest among those involved with 
the problem. A thorough study of the problems raised by digital technology was 
carried out in consultation with WIPO and the most important standardization 
agencies. It showed clearly that the protection of copyright and related rights was of 
cardinal importance, and that none of the technical solutions currently available was 
fully satisfactory. The current arrangements are based on standards which have grown 
up in practice. 
82 
CITED has therefore sought to define a general model which could be applied across 
the board, and which takes account of all the players in the information chain. The 
CITED model defines the measures needed to combat piracy, both accidental and 
deliberate. The model has now to be tested in pilot projects. 
At the hearing held on 7 and 8 July 1994 the question was asked whether identification 
systems ought to be incorporated into products. The interested parties there 
represented said that such systems would be useful, or indeed necessary in some cases. 
Many emphasized that systems of this kind should be voluntary rather than obligatory. 
Some also felt it was absolutely necessary to protect such systems themselves from 
imitation, saying that otherwise their introduction might actually make matters worse. 
The question of the information to be given was also controversial. Some felt it should 
be complete, and should identify the rightholders; others took the view that it should 
be confined to details of the work or other protected matter itself. 
Obviously this aspect is closely bound up with the question of the acquisition and 
management of rights. 
The need for action on the part of the Community has to be considered in the light of 
the principle of subsidiarity and the standards policy followed under the New 
Approach. It is clear, in any event, that if the Member States were to take 
uncoordinated measures prohibiting the marketing of certain goods, on the ground that 
they infringed standards of protection, obstacles would be placed in the way of trade. 
Steps have been taken in one Member State in association with the relevant 
professional groups and the International Standards Organization (ISO), with a view to 
developing a method of embedding identifying characters in the binary code 
sequences. Thanks to that initiative, the ISO has already agreed to adopt the principle 
of such insertion. The nature and composition of these markers is still being 
determined. It is particularly important that the tagging methods be internationally 
accepted, and the creation of "proprietary" systems by certain manufacturers, who 
would impose a standard calculated to serve their own commercial ends, must be 
avoided. 
The Community may find it advisable to act in order to make technical systems of 
protection compulsory, on a harmonized basis, once they have been developed and 
accepted by industry. 
83 
4. Questions 
1) Do you think the Community, in co-operation with the Member States, should 
make provision for legal measures which guarantee compliance with: 
• identifying tags; 
• standards for protection against private digital copying; 
• other technical systems of identification or protection against private 
digital copying? 
What would be your view if these had been introduced and accepted by 
industry? 
2) What sort of information should the identifying contain: 
• identification of the work or other protected matter; 
• identification of the original rightholders; 
• identification of the work or other protected matter, of the original 
rightholders, of licensees and other managing parties; 
• licence terms for possible future assignees of the licence? 
3) In your opinion, should works and other protected matter originating in third 
countries be prevented from entering the Internal Market if it does not 
incorporate systems of identification compatible with those recognized in the 
Community? 
4) To the extent that technical systems of protection against private digital 
copying can be developed and applied, what other legislative measures in 
respect of those systems would it be necessary and possible to adopt? 
5) If a technical system of protection against private digital copying were 
introduced on a harmonized basis, do you think that the marketing and 
importation of any equipment not containing such systems of protection should 
be forbidden? 
6) Do you consider that the eventual effectiveness of technical systems of 
protection against private digital copying depends upon the creation of 
international standards? 
7) How should it be determined whether works and other protected matter are in 
the public domain? How could it be guaranteed that protection of works and 
other protected matter by intellectual property law does not hinder or restrict 
access to data in the public domain? 
84 
ANNEX 
QUESTIONS TO INTERESTED 
PARTIES 
INTRODUCTION 
PRELIMINARY GENERAL QUESTIONS 
1. A number of areas of uncertainty are identified in point II. A. Do you know of anything 
which might help to clarify the questions raised there regarding the development of the 
market and of new services? 
2. Of the factors affecting copyright, which ones seem to you most likely to evolve, and 
consequently to merit special attention? 
3. Are there any committees, reports, studies or even concrete plans in your Member 
State concerning the national legislation which might be necessary in the field of 
copyright and related right in the information society? If so, has a timetable been 
fixed? 
4. What do you think is the most appropriate level for dealing with questions of 
intellectual property in the information society: national, Community or international? 
5. Does the creation of multimedia products based on elements of the cultural heritage 
mean that specific new legislative provision, taking account of the necessity of 
protecting the cultural heritage, is needed? If so, what provision? 
6. The works and services to be supplied on the information superhighway are piutected 
by property rights. To what extent, and according to which criteria, do you think that 
it is possible to measure the overall economic value of these copyrights and related 
rights? 
7(a) Do you have more precise statistical or economic data on the partitioning of the 
economy between the various economic sectors (e.g. publishing, audiovisual products, 
music etc) affected by activities linked to the Information Society? What percentage 
of the turnover of these sectors is covered by the protection of copyright and related 
rights? 
7(b) Do you have specific economic data or predictions which would allow assessment of 
the contribution which activities protected by copyright or related rights make to the 
economic process of the creation of services to be furnished on the information 
superhighway? 
85 
7(c) Do you have any statistics or analysis on the employment aspects 
(qualitative/quantitative) of activities protected by copyright and related rights within 
the context of the superhighway? 
8. Would you say that stronger laws on copyright and related rights would be an 
advantage lor SMEs, and, if so, in which sector in particular? 
9. In what ways do you foresee employment being affected by the development of new 
activities protected by intellectual property and associated rights within the context of 
new services to be diffused along the information superhighway? 
10. Have you other comments to make on questions which are not raised in this chapter? 
QUESTIONS ON THE SECTIONS IN CHAPTER 2 
SECTION I: APPLICABLE LA W 
(1) Does the application of the country-of-origin rule mean that additional criteria 
and provisions are necessary? If so, what should they be? 
(2) Do you think, considering the country-of-origin rule, that it is necessary to 
identify a certain number of complementary criteria for determining its 
application? If so, what criteria? 
(3) In order to determine all parties which might be liable, do you think that it 
would be possible to identify each possible participant along the transmission 
chain? If so, please could you specify those participants. 
(4) Given the differences there are in levels of protection, should the 
country-of-origin rule be used in the Community to define the act of 
transmission in respect of: 
• only those transmissions which originate in a Member State; 
• only those transmissions which originate in a Member State or in a 
third country which applies the Berne Convention (Paris Act 1971) and 
the Rome Convention of 1961; 
• all transmissions, originating in any country? 
(5) If the country-of-origin rule ought to be retained, which laws and areas of 
national law should be harmonised so as to avoid deflection of trade and loss of 
protection for rightholders, considering particularly: 
86 
• exceptions to exclusive rights; 
• ownership; 
• moral rights; 
• other rights? 
(6) How, to what extent and in which areas should the protection of rightholders 
be improved in countries which apply the Berne and Rome Conventions, or 
indeed in the Community, if the country-of-origin rule is to be applied? 
(7) If in your opinion the country-of-origin rule should not be introduced, what 
rules would you like to see applied instead? 
(8) Do you think that safeguard clauses can properly protect Community 
rightholders where matter is first entered into a network in a third country 
which does not provide sufficient protection for intellectual property? 
(9) Do you think that parties should be entirely free to choose the law of the 
contract, or do you think that freedom of contract should be restricted: 
• across the board; 
• only so as to protect certain specific aspects such as moral rights, 
equitable remuneration, or management by a collecting society; 
• only where the contract is concerned with the works or other protected 
matter of European Union rightholders? 
SECTION II. EXHA USTION OF RIGHTS AND PARALLEL IMPORTS 
(1) Should a rule be made excluding the international exhaustion of copyright, 
along the lines of Article 9(2) of the Rental Right Directive? 
(2) Should it be reaffirmed that there is no exhaustion of any rights (e.g. 
broadcasting, transmission and rental rights) in respect of the supply of 
services? 
(3) How do you see these questions against the background of on-line networks 
which seem destined to become world-wide? 
(4) Can systems providing for international exhaustion coexist with others which 
do not? 
87 
PART TWO: SPECIFIC RIGHTS 
SECTION III. REPRODUCTION RIGHT 
(1) Do you think that the digitization of works and other protected matter should 
be covered by a reproduction right? Would exceptions to the exclusive 
character of this right be justified? If so, what exceptions and why? 
(2) Do you think that private copying and reprography of digitized works, other 
protected matter, or both, other than computer programs: 
• should be fully subject to this reproduction right; 
• should be subject to this reproduction right, except that a single copy would be 
permitted (as with the SCMS system); 
• should be authorized, with or without a system of remuneration? 
SECTIONIV: COMMUNICATION TO THE PUBLIC 
1) Under what conditions do you think that the following acts can be considered 
as forms of private use: 
• transmission over the network between two private persons; 
• transmission over the network between a number of private persons 
(e.g. bulletin board services); 
• transmission over the network between a private person and a firm; 
• transmission over the network: within one or between several firms? 
(2) In the case of transmission over the network between more than two private 
persons, do you think that the fact that the people concerned know each other 
or belong to the same family should play any part in the definition of 
communication to the public? 
(3) If transmission is point-to-point, how does the nature of the persons 
communicating - private persons, firms, public bodies etc. - affect the 
classification of the act as communication to the public? 
(4) Do you think that copyright and related rights apply to the act of connecting a 
server which holds works protected by copyright to the network? If so, which 
rights apply? Do you know of any legislation which takes a position on the 
matter? 
(5) What other tests or acts do you think should be looked at to determine whether 
or not there is communication to the public? 
88 
SECTION V: DIGITAL DISSÉMINA TION OR TRANSMISSION RIGHT 
(1) The Computer Programs Directive (91/250/CEE) and the Rental Right 
Directive (91/250/CEE) could be applicable by extension to electronic 
transmission from point-to-point. Given that possibility, do you think that 
certain elements should be adapted? If so, which ones? 
(2) Would you be able to state the extent of the economic impact of the application 
of the rental and lending regime on rightholders and other parties? 
(3) What would you say was the effect upon SMEs? 
SECTION VI: DIGITAL BROADCASTING RIGHT 
(1) In your opinion, will digital broadcasting, which allows a larger number of 
channels, increase the volume of cross-border broadcasting? Do you think this 
possibility justifies Community intervention, or is it still only theoretical? 
(2) Do you think that digital broadcasting is a real threat to the holders of related 
rights, who do not currently have an exclusive broadcasting right? Is the 
introduction of exclusive digital broadcasting rights for phonogram and film 
producers and performers in these sectors necessary, or possible on certain 
conditions, or to be ruled out altogether? 
(3) Do you think that distinctions between methods of dissemination can facilitate 
a solution (for example by including only certain forms of digital broadcasting, 
such as cable transmission)? 
(4) Do you think that a tightening up of the reproduction right in the private 
sphere, which could be strictly enforced by means of technical arrangements 
preventing copying by receivers, would be sufficient to avoid problems of 
large-scale copying? 
SECTION VII: MORAL RIGHTS 
(1) Do you think that the differences between the laws of the Member States are 
such that the rules on moral rights should be harmonized? Would 
harmonization be justified in the present situation? 
89 
(2) Could it be decided that problems of moral rights are to be resolved by 
contract? When material is placed on the network, for example, or even when it 
is digitized, the author might agree to certain types of modification such as 
dubbing, subtitling, reformatting etc. 
(3) Could the very fact that the author has agreed to digitization be taken to give 
rise to a presumption that he has agreed to certain modifications? 
(4) Do you think that the acceptability of modifications could be defined in 
collective agreements between authors and performers on the one hand and 
producers and publishers on the other? 
(5) Do you think that solutions should be negotiated globally or sector by sector 
(cinema, newspaper publishing, libraries, museums, etc.)? 
PART THREE: QUESTIONS ON THE EXPLOITATION OF RIGHTS 
SECTION VIII: ACQUISITION AND MANAGEMENT OF RIGHTS 
(1) What form should be taken by centralized schemes set up by rightholders and 
managers? Would a "one-stop-shop" system be desirable or indeed sufficient 
to deal with the demands of the information society? 
(2) Should these centralized schemes be confined to issuing licences for the 
creation of multimedia works, or should they become general mechanisms? 
(3) Do you think that competing schemes, that is to say schemes covering the same 
rights, can coexist in the same Member State, in the Community as a whole or 
at world level (these might cover separate repertoires, or perhaps even identical 
repertoires)? How could such competition work in practice? 
(4) Assuming that the information society will operate on a world-wide basis, do 
you think that the licences granted by a scheme or schemes of this kind will be 
or should be world-wide licences? 
(5) Do you think that licences for a more limited territory will continue to be a 
possibility? 
(6) Do you think that alongside the existing competition rules the Community 
legislation should lay down guidelines for collecting societies or centralized 
management schemes? If so, what sort of rules are needed: a code of conduct 
90 
regulating competition between societies or schemes, rules governing relations 
between societies or schemes and their members, or both? 
SECTION IX: TECHNICAL SYSTEMS OF PROTECTION AND IDENTIFICA TION 
(1) Do you think the Community, in co-operation with the Member States, should 
make provision for legal measures which guarantee compliance with: 
• identifying tags; 
• standards for protection against private digital copying; 
• other technical systems of identification or protection against private 
digital copying? 
What would be your view if these had been introduced and accepted by 
industry? 
(2) What sort of information should the identifying contain: 
• identification of the work or other protected matter; 
• identification of the original rightholders; 
• identification of the work or other protected matter, of the original 
rightholders, of licensees and other managing parties; 
• licence terms for possible future assignees of the licence? 
(3) In your opinion, should works and other protected matter originating in 
non-Community countries be prevented from entering the Internal Market if it 
does not incorporate systems of identification compatible with those 
recognized in the Community? 
(4) To the extent that technical systems of protection against private digital 
copying can be developed and applied, what other legislative measures in 
respect of those systems would it be necessary and possible to adopt? 
(5) If a technical system of protection against private digital copying were 
introduced on a harmonized basis, do you think that the marketing and 
importation of any equipment not containing such systems of protection should 
be forbidden? 
(6) Do you consider that the eventual effectiveness of technical systems of 
protection against private digital copying depends upon the creation of 
international standards? 
(7) How should it be determined whether works and other protected matter have 
fallen into the public domain? How could it be guaranteed that protection of 
works and other protected matter by intellectual property law does not hinder 
or restrict the access to data in the public domain? 



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DOCUMENTS 
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