OPINION OF THE ECONOMIC AND SOCIAL COMMITTEE on the ' Green Paper - Copyright and related rights in the information society'
Date: 1996-01-31
Institutions: European Economic and Social Committee
Subjects: copyright, information network, intellectual property, new technology, single market













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51996AC0091

OPINION OF THE ECONOMIC AND SOCIAL COMMITTEE on the ' Green Paper - Copyright and related rights in the information society'  


Official Journal C 097 , 01/04/1996 P. 0009 





Opinion on the 'Green Paper - Copyright and related rights in the  information society'(96/C 97/03)On 27  July 1995, the European Commission decided to  consult the Economic and Social Committee, under Article  198 of the Treaty establishing the  European Economic Community, on the 'Green Paper - Copyright and related rights in the information  society'. The Section for Industry, Commerce, Crafts and Services, which was responsible for preparing the  Committee's work on the subject, adopted its Opinion on 10  January 1996. The Rapporteur was Mr  Moreland. At its 332nd Plenary Session (meeting of 31  January 1996), the Economic and Social Committee  adopted the following Opinion unanimously. 1. Commission document1.1. This Green Paper is a general consultative document relating  to possible further Community harmonization measures which may be needed as a result of the  development of the 'information superhighway'. 1.2. The information superhighway, in essence, means the spread of computer networks as means of  performing, displaying, distributing, exchanging and storing works and information in digital form.  This means of transmitting information, cultural works and entertainment is becoming more and more  important as more and more information and cultural material is capable of being carried digitally  than ever before. 1.3. This is a request for the feedback on certain legal questions which arise from the spread of  this advanced technology. 2. The Commission's general questions2.1. First the Commission asks some preliminary general  questions. They include: 2.1.1. What is the most appropriate level for dealing with intellectual property in the information  society, national, Community or international?2.1.2. Should the existence of multimedia products  (e.g. CD-ROMs) require special legislation to take account of the necessity to protect the cultural  heritage?2.1.3. How is the overall economic value of copyright and related rights, which protect  the works to be provided on the superhighway, to be measured?2.1.4. There is a request for  specific economical or statistical data relating to activities on the superhighway, and the  economic consequences of intellectual property protection for products and services distributed on  the superhighway, particularly relating to SMEs and the effect on employment. 2.2. The Green Paper then discusses some specific issues and, again, raises certain issues by way  of questions. 3. The Commission's specific questions3.1. Intellectual property rights are territorial, and it  will be difficult to assess where an act of intellectual property infringement is taking place. The  Commission seeks views on whether a 'country of origin' rule along the lines of the Directive on  the coordination of certain rules concerning copyright and rights related to copyright applicable  to satellite broadcasting and cable retransmission (Cable and Satellite Directive) may be a way to  solve this problem. In other words, the law of the State in which the transmission of the relevant  material takes place would govern the whole transaction. 3.2. Views are sought on the question of international exhaustion of rights (the right to import  into the EU products placed on the market with the consent of the intellectual property right  holder for dissemination in States outside the EU). 3.3. It is asked whether the digitization of works should constitute reproduction and hence be an  infringement of copyright if carried on without the consent of the right holder. 3.4. The Commission seeks views on transmission for private use and in what circumstances  transmissions should be regarded as transmissions to the public at large. 3.5. The Commission asks whether there should be a specific right belonging to the copyright holder  to control digital dissemination. 3.6. Digital broadcasting would allow many more broadcasts of a higher quality of sound and vision  on the same frequency and considerably more cross-border broadcasting. If more is broadcast, then  more is copyable. Views are sought on whether performers and other holders of 'related rights'  should have an exclusive right to prevent their performances, etc., being broadcast. 3.7. An author's moral rights are his or her right to acknowledgement of authorship; not to have  works altered without consent; and not to be subjected to derogatory treatment. Views are sought on  whether moral rights laws in the Community should be harmonized; whether consent to digitization  should be deemed a waiver of moral rights, should there be collective agreements dealing with moral  rights between authors and publishers?3.8. The Commission asks questions on the exploitation of  rights, in particular whether there should be a centralized scheme for rights clearance for  multimedia products and whether the Community should lay down rules for the central management of  such things. 4. General comments4.1. The Committee welcomes the Green Paper, particularly because the rapid  development of technology means the constant reevaluation of the legal rules which govern it. 4.2. The most appropriate level for dealing with questions of intellectual property in the  information society must be at the international level in the long term: the information society is  reducing the significance of national boundaries. At the least, therefore, initiatives in this  field should be at Community rather than national level and the emphasis must be on achieving an  agreed position for the EU. This will be particularly important in the light of conclusions reached  by the US Government in its recent White Paper on this subject. 4.3. Although the Commission is to be congratulated on the legislation, on which it has so far  managed to achieve Council agreement, this is a slow and complex process and must have due regard  to national and European cultures. It is important to have a sense of priority based on tackling  those issues which are most damaging to the European industry and for the EU's possibilities of  exploiting its cultural heritage in competition with the rest of the world and where there are  clear problems related to barriers to trade in a single market. 4.4. In the Committee's view the main priorities are (in the order in which they are mentioned in  the Green Paper): 4.4.1. the question of defining which law applies to cross-border transactions within the Community  and to and from third countries; 4.4.2. the harmonization of the law of exhaustion of rights; 4.4.3. to ensure that the right to restrict digitization as part of the reproduction right is fully  protected; 4.4.4. the harmonization of Member States' laws concerning (and/or defining) when works  disseminated over the information highway are to be made available to the general public. 4.4.5. the harmonization of moral rights laws in the Community, which differ widely. 4.5. The solution to these needs to be given taking into account the balance of interests between  'authors', producers and consumers. 5. Specific comments5.1. General questions5.1.1. What is the most appropriate level for dealing  with intellectual property in the information society, national, community or international? The  most appropriate level for dealing with questions of intellectual property in the information  society must be at the international level (see general comments above). 5.1.2. The Legal Protection of Data Bases Directive is sufficient to protect most multimedia  products. In addition, there is a case for strong moral rights' legislation at the EU level. 5.1.3. The Committee believes that the overall economic value of copyright and related rights which  protect the works to be provided on the superhighway is not easily measurable. As to the effect on  SMEs, the Committee believes that the Software Directive balances the rights of the small developer  against the rights of the larger enterprise. Something analogous may be appropriate here. Sometimes  a balance between absolute prohibition and a compulsory licence must be struck. Also, the Committee  considers that the employment effect of copyright law should not be underestimated and justifies  the considerable attention that should be given to the subject of intellectual property at the EU  level. 5.2. Specific questions5.2.1. Applicable lawIn principle, the Committee agrees that, as the  Commission suggests, the solution to the difficulty presented by frequent transfer of data between  countries may be a 'country of origin' rule along the lines of the Cable and Satellite Directive.  Care should be taken, however, that people do not disseminate works from those Member States with  lower levels of protection or enforcement capability. It is appropriate that the law of the country  in which a server or other disseminator of works is situated should govern the uploading of the  works on the server and its dissemination from the server. But any such legal provision must ensure  that the right holder has the right to enforce his rights in the territory into which the download  takes place. There is also need to harmonize and strengthen and practise enforcement rules on an EU  level. 5.2.2. Exhaustion of rightsThis is a complex issue. The basic question is whether electronic or  physical imports incorporating intellectual property rights from outside the Community are subject  to the control of the intellectual property right holder when they enter the Community. This  depends upon the form in which the protected work or related matter is exploited. Existing  Community legislation provides that the principle of exhaustion of rights only applies when these  are incorporated in physical products, not, however, to its distribution in electronic form.  Consequently, an intellectual property right holder would retain all control over electronic  imports from outside the Community and their further distribution. In general, the Committee's view  is that this should also apply to the import of works and other protected matter when being  incorporated in physical products when they enter the Community. But in circumstances where a third  country has adequate intellectual property right protection, and the intellectual property right  holder has authorized the distribution of products in electronic form, this general principle may  be varied. In those limited circumstances, the intellectual property right holder should not have  the automatic right to restrict importation into the EU. An example of this latter limitation is  the very common practice of downloading files and documents from a server in the USA to a computer  in one of the Member States of the EU. It is practically impossible to police such activity. In  these circumstances, in the Committee's view, it is just that a downloader in an EU Member State  should have exactly the same rights - no more and no less - as a downloader in the US. 5.2.3. DigitizationIt is asked whether the digitization of works should constitute reproduction  and hence be an infringement of copyright if carried out without the consent of the right holder.  The digitization of a work (permanently or temporarily) is the same as any other method of copying  and in principle should be treated in the same way; to the extent that this is not a principle  common to all Member States, harmonization measures should ensure that it is. A second and related  question is whether the right of the copyright owner relating to digitization should be the right  to exclude others from digitizing the work without consent; or whether it should simply be a right  to receive remuneration for digitization, which subject to the payment of that remuneration would  be authorized. Granted that digitization is no different from other means of copying, the Committee  sees no reason to depart from the basic principle that the right of the copyright holder to prevent  it should be an exclusionary one. 5.2.4. Private copyingAlthough it is not the case that private copying should be treated as  automatically permitted, the priority should be to ensure that unlicensed copying for commercial  purposes should clearly be forbidden. Special attention merits the copying for education and  scientific use. So far as private, non-commercial copying is concerned, priority should be given to  issues which clearly have a detrimental effect on rightholders. 5.2.5. Technical protectionThe question is raised as to whether Member States should make  provision for legal measures which guarantee compliance with technical systems for protection  against copying. This question breaks down into two sub-questions, namely whether manufacturers  should be bound to incorporate technical protection into their hardware; and whether it should be  made the equivalent of infringing copyright or other rights in products which are the subject of  technical protection to produce or sell hardware which circumvents that technical protection. In  the Committee's view, it is not appropriate to impose upon right owners or manufacturers the  obligation to follow any particular regime of technical protection but, if one is followed, then it  should be unlawful to assist in circumventing it. 5.2.6. Digital broadcastingThe principles set out under 5.2.3 above indicate that the rights of  'related right' holders in principle be exclusive ones, not merely rights to equitable remuneration  and that there should be no distinction in this regard between analogue and digital broadcasts. 5.2.7. Digital dissemination or transmission rightThe question is put by the Commission as to  whether it is appropriate to extend the Rental Right Directive to electronic point-to-point  transmission. The Committee does not consider this appropriate; such an extension would be  artificial (transmission is not 'rental' in any meaningful sense of the term) and unnecessary (the  rental right was introduced in part to compensate for the exhaustion of the right holder's rights  in physical copies of the work and, as has been pointed out above, absolute exhaustion of rights in  respect of electronic transmissions is not appropriate). In the Committee's view, however,  transmission should be covered by the exclusive rights of the right holder, including the exclusive  right to make works available to the general public. One simple method could be to ensure that the  right to prevent point-to-point transmission is part of the right to prevent reproduction. An  alternative, favoured by the US Government in its White Paper, would be the creation of an  exclusive transmission right as part of the distribution right. The former is simpler. 5.2.8. Moral rightsMoral rights are important to authors. The increased cross-border traffic in  works means that there is a stronger case for harmonization than there has been before. The ease  with which digital works can be altered means that the case for strong moral rights, at least at  the level provided by the Berne Convention is, in the Committee's view, made out. However, a waiver  of the use of these rights in explicit cases should be permitted. 5.2.9. Management of rightsThere are also questions on acquisition and management of rights and on  technical systems of protection, in particular as to whether there should be a centralized scheme  for rights clearance for multimedia products and whether the Community should lay down rules for  the central management of such schemes. In the view of the Committee, it is premature to consider  centralized management of rights in this way; if authors want to licence their rights collectively,  there is no reason to suppose that they will not band together to do so without intervention at EU  level, as has happened in the past in the Member States. 5.3. Other issues - Computer generated worksThe Committee has referred to this problem in previous  Opinions (e.g. its Opinion on the draft of what is now the Directive on the legal protection of  computer programmes (91/250/EEC). The Green Paper does not touch upon the question of the  protection of computer generated works, that is to say works which have been directly created by a  computer programme. The progress of technology has increased the number and quality of such  programmes and the issue should, in the Committee's view, be reconsidered. The Committee welcomes  the Commission's stated intention to study the problem further. Done at Brussels, 31  January 1996. The Presidentof the Economic and Social CommitteeCarlos FERRER