WRITTEN QUESTION P-2249/00

by Diana Wallis (ELDR) to the Commission

(29 June 2000)

Subject: Draft Common Position on the Copyright (COM(97) 628)

The draft Common Position on the Copyright Directive (COM(97) 628(1) indicates a Commission and Council Declaration on Recital 23 which is technology specific, referring only to proxy caching.

By proxy caching does the Commission mean network caching in general, or are the Commission and the Council deliberately excluding all other forms of caching from the scope of the Declaration?

If it is the intention of the Declaration to refer to network caching in general, can the Commission ensure that the Common Position text reflects this?

(1) OJ C 108, 7.4.1998, p. 6.

Answer given by Mr Bolkestein on behalf of the Commission

(8 September 2000)

In line with the amended proposal for a directive of the Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society, the draft common position, in its article 5(1), provides an obligatory exception for certain acts of temporary reproduction which are considered technical copies(1).

As in the Commission's amended proposal for this directive, there are several conditions to be fulfilled before the exemption applies. According to article 5(1), those acts of reproduction are exempted which are transient or incidental, forming an essential part of a technological process carried out for the sole purpose of enabling either an efficient transmission in a network between third parties by an intermediary, or a lawful use of a work or other subject matter to be made. Furthermore, the acts of reproduction concerned must have no separate economic value on their own. To the extent that they meet these conditions, this exception also covers acts of copying which enable browsing as well as acts of caching to take place, including those which enable transmission systems to function efficiently. These cache copies may take place in the network but the exception may include other forms of caching as well.

As for the treatment of copies arising in the context of browsing and caching, the proposed recital 23 stresses that the exception under article 5(1) only applies to the extent that the intermediary does not modify the information and does not interfere with the lawful use of technology, widely recognised by industry, to obtain data on the use of the information. These conditions are strongly inspired by section 4 of the Directive of the Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the internal market(2) on the liability of intermediaries. It is in this context that the Council and the Commission intend to make a declaration confirming that this latter wording (provided that the intermediary does not modify the information mldr to obtain data on the use of the information) does not exclude proxy caching by an intermediary from being exempted under article 5(1), if such caching meets the conditions set out in this provision. The sole reference to proxy caching as such does not imply, however, that any other acts of caching may not be covered by article 5(1).

(1) OJ C 180, 25.6.1999.

(2) OJ L 178, 17.7.2000.