Amended proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society
Date: 1999-05-21
Institutions: European Commission
Subjects: approximation of laws, copyright, information policy, new technology, single market

C 180/6

EN

Official Journal of the European Communities

25.6.1999

II

(Preparatory Acts)

COMMISSION

Amended proposal for a European Parliament and Council Directive on the harmonisation of
certain aspects of copyright and related rights in the information society (1)

(1999/C 180/04)

(Text with EEA relevance)

COM(1999) 250 final (cid:151) 97/0359(COD)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 25 May 1999)

THE EUROPEAN PARLIAMENT AND THE COUNCIL
OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Articles 47(2), 55 and 95
thereof,

Having regard to the proposal from the Commission (2),

Having regard to the opinion of
Committee (3),

the Economic and Social

Acting in accordance with the procedure laid down in Article
251 of the Treaty (4),

(1) Whereas the Treaty provides for the establishment of an
the removal of barriers to the free
internal market,
movement of goods,
the freedom to provide services
and the right of establishment and the institution of a
system ensuring that competition in the internal market
is not distorted; whereas harmonisation of the laws of the
Member States on copyright and related rights contributes
to the achievement of these objectives;

(2) Whereas the European Council, meeting at Corfu on 24
and 25 June 1994, stressed the need to create a general
and flexible legal framework at Community level in order
to foster the development of the information society in
Europe; whereas this requires, inter alia, the existence of
an internal market for new products and services; whereas
important Community legislation to ensure such a regu-
latory framework is already in place or is well under way;
whereas copyright and related rights play an important

(1) OJ C 108, 7.4.1998, p. 6.
(2) COM(97) 628 final of 10.12.1997 (OJ C 108, 7.4.1998,

p. 6).

(3) OJ C 407, 28.12.1998, p. 30.
(4) Opinion of the European Parliament of 10.2.1999.

role in this context as they protect and stimulate the
and marketing of new products and
development
services and the creation and exploitation of
their
creative content;

(2bis) Whereas the proposed harmonisation will help to
implement the four freedoms of the internal market
and relates to compliance with the fundamental prin-
ciples of law and especially of property (cid:151) including
intellectual property (cid:151) freedom of expression and the
public interest;

(3) Whereas a harmonised legal framework on copyright and
related rights, through increased legal certainty and while
providing for a high level of protection of intellectual
property, will foster substantial
investment in creativity
and innovation,
including network infrastructure, and
lead in turn to growth and increased competitiveness of
European industry, both in the area of content provision
and information technology and more generally across a
wide range of industrial and cultural sectors; whereas this
will
safeguard employment and encourage new job
creation;

(4) Whereas technological development has multiplied and
diversified the vectors for creation, production and exploi-
tation; whereas, while no new concepts for the protection
of intellectual property are needed, the current law on
copyright and related rights will have to be adapted and
supplemented to adequately respond to economic realities
such as new forms of exploitation;

(5) Whereas, without harmonisation at Community level,
level which have already
legislative activities at national
been initiatied in a number of Member States in order to
respond to the technological challenges might result in
in protection and thereby in
significant differences
services and
restrictions on the free movement of
intellectual
products

incorporating,

based

on,

or

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leading to a refragmentation of

the internal
property,
market and legislative inconsistency; whereas the impact
of
such legislative differences and uncertainties will
become more significant with the further development
the information society, which has already greatly
of
intellecutal
increased
property; whereas
this development will and should
further increase; whereas significant legal differences and
uncertainties in protection may hinder economies of scale
for new products and services containing copyright and
related rights;

exploitation

transborder

of

to that end,

the smooth functioning of

(6) Whereas the Community legal framework for the legal
protection of copyright and related rights must, therefore,
also be adapted and supplemented as far as is necessary
the internal market;
for
whereas,
those national provisions on
copyright and related rights which vary considerably
from one Member State to another or which cause legal
the
uncertainties hindering the smooth functioning of
internal market and the proper development of
the
information society in Europe should be adjusted, and
inconsistent national responses to the technological devel-
avoided, whilst differences not
opments
adversely affecting the
internal
functioning of
market need not be removed or prevented;

should be

the

adequate

is considerable;
services such as (cid:145)on-demand(cid:146) services,
whereas
intellectual
of
protection
property rights is necessary in order to guarantee the
availability of such a reward and provide the opportunity
for satisfactory returns on this investment;

legal

(9bis) Whereas a rigorous, effective system for the protection
of copyright and related rights is one of the main ways
of ensuring that European cultural production receives
the necessary resources and of safeguarding the inde-
pendence
and
of
performers;

creators

dignity

artistic

and

(10) Whereas adequate protection of copyright works and
subject matter of realted rights is also of great importance
from a cultural standpoint; whereas Article 151 of the
Treaty requires the Community to take cultural aspects
into account in its action;

(10bis) Whereas

a

common search for,

and consistent
application at European level of, technical measures
the necessary
to protect works
and to provide
the
insofar as
information on rights are essential
ultimate aim of
these measures is to give effect to
the principles and guarantees laid down in law;

(7) Whereas the various social, societal and cultural

impli-
cations of the information society require that account
the content of
be taken of
products and services;

the specific features of

(10ter) Whereas this Directive must seek to promote learning
and culture by protecting creative and artistic works
while permitting exceptions in the public interest for
the purpose of eduction and teaching;

(8) Whereas any harmonisation of copright and related rights
must take as a basis a high level of protection, since such
rights are crucial to intellectual creation; whereas their
protection helps to ensure the maintenance and devel-
authors,
in the
opment of
performing
culture,
producers,
industry and the public at
large; whereas intellectual
property has therefore been recognised as an integral
part of property;

interests of
consumers,

creativity
artists,

area,

(8bis) Whereas this Directive is based on principles and rules
already laid down in the Directives currently in force in
in particular Nos 92/100/EEC of 19
this
November 1992, 93/98/EEC of 29 October 1993,
91/250/EEC of 14 May 1991, 93/83/EEC of 27
September 1993 and 96/9/EC of 11 March 1996, and
whereas it develops those principles and rules and
places them in the context of the information society;

(9) Whereas if authors or performing artists are to continue
their creative and artistic work they have to receive an
appropriate reward for the use of their work, as must
producers in order to be able to finance this creative
work; whereas the investment required to products such
films or multimedia products, and
as phonograms,

(11) Whereas

the Diplomatic Conference held under

the
auspices of the World Intellectual Property Organisation
(WIPO) in December 1996 led to the adoption of two
new treaties,
the (cid:145)WIPO Copyright Treaty(cid:146) and the
(cid:145)WIPO Performances and Phonograms Treaty(cid:146), dealing
respectively with the protection of authors and the
protection of performers and phonogram producers;
whereas those treaties update the international protection
least
for copyright and related rights significantly, not
with regard to the
and
agenda(cid:146),
improve the means to fight piracy world-wide; whereas
the Community and a majority of Member States have
already signed the treaties and the process of making
arrangements for the ratification of the treaties by the
is under way;
Community and the Member States
whereas
to implement a
number of the new international obligations;

this Directive also serves

co-called (cid:145)digital

(12) Whereas liability for activities in the network environment
concerns not only copyright and related rights but also
other areas, such as defamation, misleading advertising, or
infringement of
addressed
horziontally
and Council
in
Directive . . ./. . ./EC on certain legal aspects of electronic

trademarks,
European

and will be

Parliament

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commerce in the internal market (1) which clarifies and
harmonises various legal
issues relating to information
society services including electronic commerce; whereas
the provisions relating to liability in the context of elec-
tronic commerce should come into force within a
this Directive, since they
timescale similar to that of
should provide a harmonised framework of principles
and provisions relevant to, inter alia, important parts of
this Directive;

(12bis) Whereas, especially in the light of the requirements
arising out of the digital environment, it is necessary
to ensure that collecting societies achieve a higher level
rationalisation and transparency with regard to
of
compliance with competition rules;

(13) Whereas

the provisions of

this Directive should be
without prejudice to existing Community provisions in
the
rights, unless
and
otherwise provided in this Directive;

copyright

area of

related

(13bis) Whereas this Directive applies without prejudice to the
legal protection of designs, which is dealt with in
European
Directive
98/71/EC (2) on the legal protection of designs;

Parliament

Council

and

(14) Whereas this Directive should define the scope of the acts
covered by the reproduction right with regard to the
different beneficiaries; whereas this should be done in
conformity with the acquis
communautaire; whereas a
broad definition of these acts is needed to ensure legal
certainty within the internal market;

(14bis) Whereas

the objective of proper

the
dessemination of culture must not be achieved by
sacrificing strict protection of rights or by tolerating
counterfeited or
illegal
pirated works;

forms of distribution of

support

for

(15) Whereas

this Directive

right
applicable to the communication to the public of works,
where this has not yet been done by existing Community
legislation;

should harmonise

the

(16) Whereas the legal uncertainty regarding the nature and
the level of protection of acts of on-demand transmission
of copyright works and subject matter protected by
related rights over networks should be overcome by
providing for harmonised protection at Community
level; whereas
rightholders
recognised by the Directive with an exclusive right to
make available to the public copyright works or any
other subject matter by way of
interactive on-demand
transmissions; whereas such interactive on-demand trans-
missions are charcterised by the fact that members of the

provide

should

all

it

(1) COM(1998) 586 final of 18.11.1998.
(2) OJ L 289, 28.10.1998, p. 28.

public may access them from a place and at a time indi-
vidually chosen by them; whereas this right does not
cover direct representation or performance;

(17) Whereas the mere provision of physical

facilities for
enabling or making a communication does not in itself
amount to communication within the meaning of this
Directive;

(18) Whereas

copyright protection under

this Directive
includes the exclusive right
to control distribution of
the work incorporated in a tangible article; whereas the
first sale in the Community of the original of a work or
copies thereof by the rightholder or with his consent
exhausts the right to control resale of that object in the
Community; whereas this right should not be exhausted
in respect of the original or of copies thereof sold by the
rightholder or with his consent outside the Community;

(19) Whereas the question of exhaustion does not arise in the
case of services and online sevices in particular; whereas
this also applies with regard to a material copy of a work
or other subject matter made by a user of such a service
the rightholder; whereas, unlike
with the consent of
CD-ROM or CD-I, where the intellectual property is incor-
porated in a material medium, namely an item of goods,
every on-line service is in fact an act which will have to
be subject to authorisation where the copyright or related
right so provides;

(20) Whereas the rights referred to in this Directive may be
transferred, assigned or subjected to the granting of
contractual
licences, without prejudice to the relevant
national legislation on copyright and related rights;

(21) Whereas a fair balance of rights and interests between the
different categories of rightholders, as well as between the
different categories of rightholders and users of protected
subject matter must be safeguarded; whereas the existing
exceptions to the rights as set out by the Member States
have to be reassessed in the light of the new electronic
environment; whereas existing differences in the limi-
tations and exceptions to certain restricted acts have
direct negative effects on the functioning of the internal
market of copyright and related rights; whereas such
differences could well become more pronounced in view
of the further development of transborder exploitation of
works and cross-border activities; whereas in order to
ensure the proper functioning of
the internal market,
such exceptions should be defined more harmoniously;

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their harmonisation should be
whereas the degree of
based on their impact on the smooth functioning of the
internal market;

(22) Whereas

for

this Directive provides

an exhaustive
enumeration of exceptions to the reproduction right and
the right of communication to the public; whereas some
exceptions only apply to the reproduction right, where
appropriate; whereas this list takes due account of the
different legal traditions in Member States, while, at the
same time, aiming to ensure a functioning internal
is desirable that Member States
market; whereas
should arrive
these
coherent
exceptions, which will be assessed when reviewing
implementing legislation in the future;

application of

at

it

a

(23) Whereas the exclusive right of reproduction should be
subject
to an exception to allow certain acts of
temporary reproduction, such as transient and incidental
reproductions, forming an integral part of and essential to
a technological process carried out for the sole purpose of
enabling the use of a work or other protected subject
matter and which have no separate economic value on
their own; whereas under these conditions this exception
should include acts of caching or browsing;

(24) Whereas Member States should be given the option of
such as
providing for certain exceptions
for the benefit of
educational and scientific purposes,
public institutions such as libraries and archives,
for
purposes of news reporting, for quotations, for use by
people with disabilities, for public security uses and for
uses in administrative and judicial proceedings;

for cases

(24bis) Whereas it is in any case important for the Member
States to adopt all necessary measures to facilitate
access to works by persons suffering from a disability
which constitutes an obstacle to the use of the works
themselves, and to pay particular attention to accessible
formats;

to

prejudice

rightholders; whereas,

impact on the development of

continuation of remuneration schemes to compensate for
the
although
differences between those remuneration schemes affect
the functioning of the internal market, those differences,
with respect to analogue private reproduction, should not
the
have a significant
information society; whereas digital private copying is
likely to be more widespread and have a greater
economic impact; whereas a distinction should therefore
be made between digital private copying and analogue
private copying and whereas the conditions of application
should in both cases be harmonised to a certain extent;
whereas it
in the case of
digital private copying, that all rightholders receive fair
compensation.

is of particular importance,

(27) Whereas, when applying the

exception on private
copying, Member States should take due account of tech-
nological and economic developments, in particular with
respect
to digital private copying and remuneration
protection
schemes, when
measures are available; whereas such exceptions should
not inhibit the use of technological measures or their
enforcement against circumvention;

technological

effective

(28) Whereas Member States may provide for an exception for
the benefit of establishments accessible to the public, such
as non-profit-making libraries and equivalent institutions;
whereas, however, this should be limited to certain special
cases covered by the reproduction right; whereas such an
exception should not cover uses made in the context of
on-line delivery of protected works or other subject
matter; whereas
should be without
prejudice to Member States’ option to derogate from the
exclusive public lending right in accordance with Article
5 of Council Directive 92/100/EEC of 19 November 1992
on rental right and lending right and on certain rights
related to copyright in the field of intellectual property, as
amended by Directive 93/98/EEC; whereas,
therefore,
specific contracts or licences should be promoted which,
without creating imbalances, favour such establishments
and the disseminative purposes they serve;

this Directive

(25) Whereas existing national schemes on reprography, where
they do exist, do not create major barriers to the internal
market; whereas Member States should be allowed to
provide for an exception in respect of reprography;

(26) Whereas Member States should be allowed to provide for
an exception to the reproduction right for certain types of
reproduction of audio, visual and audiovisual material for
private use, accompanied by fair compensation in certain
this may include the introduction or
cases; whereas

(29) Whereas, when applying those exceptions, they should be
exercised in accordance with international obligations;
whereas such exceptions may not be applied in a way
which prejudices the legitimate interests of the rightholder
or which conflict with the normal exploitation of his
work or other subject matter; whereas the provision of
such exceptions by Member States should, in particular,
that such
the increased economic impact
duly reflect
exceptions may have in the context of the new electronic
environment; whereas,
the scope of certain
therefore,
exceptions may have to be even more limited when it
comes to certain new uses of copyright works and
other subject matter;

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(29bis) Whereas the exceptions referred to in Article 5(2) and
(3) must not, however, prevent
the definition of
contractual relations designed to ensure fair compen-
sation for the rightholders;

(29ter) Whereas recourse to mediation could help users and
to
the
settle
rightholders
Commission,
in cooperation with the Member States
within the contact committee, should undertake a
study to consider new legal ways of settling disputes
concerning copyright and related rights;

disputes; whereas

(30) Whereas

technological development will allow right-
holders to make use of technological measures designed
to prevent and inhibit the infringement of any copyright,
rights related to copyright or sui generis rights provided by
law; whereas
illegal
the danger, however, exists
in order to enable or
activities might be carried out
facilitate the circumvention of
the technical protection
provided by these measures; whereas, in order to avoid
fragmented legal approaches that could potentially hinder
the functioning of the internal market, there is a need to
provide for harmonised legal protection against any
activity
circumvention
without authority, whether granted by the rightholders
or conferred by law, of such measures;

facilitating

enabling

that

the

or

the

however,

preventing

the infringement of any copyright,

(30bis) Whereas such a legal protection should be provided to
technological measures that effectively inhibit and/or
prevent
right
related to copyright or sui generis rights provided by
law, without,
normal
operation of electronic equipment and its technological
development; whereas such legal protection implies no
obligation to design devices, products, components or
services
to correspond to technological measures;
whereas such legal protection should respect propor-
those devices or
tionality and should not prohibit
significant
activities which have
the
purpose or use other
technical protection; whereas,
this
protection should not hinder research into crypto-
graphy;

than to circumvent
in particular,

commercially

a

(31) Whereas such a harmonised legal protection does not
affect the specific provisions of protection provided for
by Council Directive 91/250/EEC of 14 May 1991 on
as
the
amended by Directive 93/98/EEC; whereas in particular,
inhibit decompilation permitted by that
it
Directive;

computer programs (1),

legal protection of

shall not

in

increasingly

networked
an
format; whereas,
environment, differences between technological measures
could lead to an incompatibility of systems within the
Community; whereas compatibility and interoperability
of the different systems should be encouraged; whereas
it would be highly desirable to encourage the devel-
opment of global systems;

(33) Whereas

technological development will

facilitate the
distribution of works, notably on networks, and this
the need for rightholders to better identify
will entail
the work or other subject matter,
the author or any
other rightholder, and to provide information about the
terms and conditions of use of the work or other subject
matter in order to render easier the management of rights
attached to them; whereas there is, however, the danger
that illegal activities might be carried out in order to
the electronic copyright-management
remove or alter
information attached to it, or otherwise to distribute,
import for distribution, broadcast, communicate to the
public or make available to the public copies from
which such information has been removed without
authority; whereas in order to avoid fragmented legal
approaches that could potentially hinder the functioning
of the internal market, there is a need to provide for
harmonised legal protection against any of those activities;

any

such

information
rights-management
(34) Whereas
referred to above may, depending on their
systems
the same time process personal data about
design, at
the consumption patterns of protected subject matter by
individuals and allow for tracing of on-line behaviour;
functions,
whereas technical means,
should incorporate privacy safeguards
in accordance
and Council Directive
whith European Parliament
95/46/EC of 24 October 1995 on the protection of indi-
viduals with regard to the processing of personal data and
the free movement of such data (2);

in their technical

(35) Whereas

this Directive is without prejudice to the
application
and Council
Directive . . ./. . ./EC concerning the legal protection of
services based on, or consisting of, conditional access;

Parliament

European

of

(36) Whereas Member States

should provide for effective
sanctions and remedies for infringements of rights and
obligations as set out
in this Directive; whereas they
shall
the measures necessary to ensure that
those sanctions and remedies are applied; whereas the
efffective,
thus
sanctions
proportionate and dissuasive;

provided

take all

shall

for

be

(32) Whereas important progress has been made in the inter-
national standardisation of technical systems of identifi-
cation of works and protected subject matter in digital

(37) Whereas, in order to comply with the WIPO Performers
and Phonograms Treaty, Directives 92/100/EEC and
93/98/EEC should be amended;

(1) OJ L 122, 17.5.1991, p. 42.

(2) OJ L 281, 23.11.1995, p. 31.

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(38) Whereas, after a period of two years following the date of
implementation of this Directive, the Commission should
report on its application; whereas this report should
examine in particular whether the conditions set out in
the Directive have resulted in ensuring a proper func-
the internal market, and should propose
tioning of
action if necessary,

(b) for performers, of fixations of their performances;

(c) for phonogram producers, of their phonograms;

(d) for the producers of the frist fixations of films, in respect of

the original and copies of their films;

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

OBJECTIVE AND SCOPE

Article 1

Scope

1.
This Directive concerns the legal protection of copyright
and related rights in the framework of the internal market,
with particular emphasis on the information society.

Except in the cases referred to in Article 10, this Directive
leave intact and shall in no way affect specific existing

2.
shall
Community provisions relating to:

(a) the legal protection of computer programs;

(b) rental right,

lending right and certain rights related to

copyright in the field of intellectual property;

(c) copyright and related rights applicable to broadcasting of

programmes by satellite and cable retransmission;

(e) for broadcasting organisations, of

their
broadcasts, whether those broadcasts are transmitted by
wire or over the air, including by cable or satellite.

fixations of

Article 3

Right of communication to the public, including the right
of making available works or other subject matter

1. Member States shall provide authors with the exclusive
right to authorise or prohibit any communication to the public
of originals and copies of their works, by wire or wireless
means, including the making available to the public of their
works in such a way that members of the public may access
them from a place and at a time individually chosen by them.

2. Member States shall provide for the exclusive right to
authorise or prohibit the making available to the public, by
wire or wireless means, in such a way that members of the
public may access them from a place and at a time individually
chosen by them:

(a) for performers, of fixations of their performances;

(b) for phonogram producers, of their phonograms;

(d) the term of protection of copyright and certain related

rights;

(c) or the producers of

the frist

fixations of

films, of

the

original and copies of their films;

(e) the legal protection of databases.

CHAPTER II

RIGHTS AND EXCEPTIONS

Article 2

Reproduction right

Member States shall provide for exclusive right to authorise or
temporary or permanent repro-
prohibit direct or indirect,
duction by any means and in any form, in whole or in part:

(a) for authors, of their works,

(d) for broadcasting organisations, of

their
broadcasts, whether these broadcasts are transmitted by
wire or over the air, including by cable or satellite.

fixations of

The rights referred to in paragraphs 1 and 2 shall not be
3.
exhausted by any act of communication to the public of a
work and other subject matter as set out
in paragraph 2,
including their being made available to the public.

4.
The mere provision of physical facilities for enabling or
making a communication does not in itself amount to an act of
communication to the public within the meaning of
this
Article.

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Article 4

Distribution right

(c)

in respect of the
1. Member States shall provide authors,
thereof, with the
original of
exclusive right to any form of distribution to the public by
sale or otherwise.

their works or of copies

specific acts of

reproduction made for
in respect of
archiving or conservation purposes by establishments
which are not
economic or
commercial advantage, such as, in particular libraries and
archives and other teaching, educational or cultural estab-
lishments;

for direct or

indirect

2.
The distribution right shall not be exhausted within the
Community in respect of the original of their works or of
copies thereof, except where the first sale or other transfer of
ownership in the Community of that object is made by the
rightholder or with his consent.

Article 5

Exceptions to the restricted acts set out in Articles 2, 3
and 4

Temporary acts of reproduction referred to in Article 2,
1.
such as transient and incidental acts of reproduction which are
an integral and essential part of a technological process,
including those which facilitate effective functioning of trans-
mission systems, whose sole purpose is to enable use to be
made of a work or other subject matter, and which have no
independent economic significance, shall be exempted from the
right set out in Article 2.

2. Member States may provide for
to the
exclusive right of reproduction provided for in Article 2 in
the following cases:

limitations

(a) in respect of

exception of musical works

reproductions on paper or any similar
in
medium, with the
published form, effected by the use of any kind of photo-
graphic technique or by some other process having similar
effects, provided that the rightholders receive fair compen-
sation;

(b) in respect of reproductions on audio, visual or audio-visual
analogue recording media made by a natural person for
private and strictly personal use and for non-commercial
ends, on condition that
receive fair
compensation;

the rightholders

(d) in respect of ephemeral

organisations by means of
their own broadcasts;

fixations made by broadcasting
their own facilities and for

3. Member States may provide for limitations to the rights
referred to in Articles 2 and 3 in the following cases:

(a) use for the sole purpose of

illustration for teaching or
scientific research, as long as the source is indicated and
to the extent justified by the non-commercial purpose to be
achieved, on condition that the rightholders receive fair
compensation;

(b) uses for the benefit of people with a disability, which are
directly related to the disability and of a non-commercial
nature and to the extent required by the specific disability;

(c) use of excerpts in connection with the reporting of current
events, as long as the source and, if possible, the author’s
name is indicated, and to the extent
justified by the
informatory purpose and the objective of illustrating the
event concerned;

(d) quotations

for purposes

such as criticism or

review,
provided that
they relate to a work or other subject
matter which has already been lawfully made available to
the public, that the source and,
if possible, the author’s
their use is in accordance
name is indicated, and that
required by the
with fair practice, and to the extent
specific purpose;

(e) use for the purposes of public security or to ensure the
reporting of an administrative,

proper performance or
parliamentary or judicial procedure.

the Member States may provide

for an
3bis. Where
exception to the right of reproduction pursuant to paragraphs
2 and 3 of this Article, they may provide similarly for an
exception to the right of distribution as referred to in Article
4 to the extent justified by the purpose of the authorised act of
reproduction;

(b) bis.

in respect of reproductions on audio, visual or audio-
visual digital
recording media made by a natural
person for private and strictly personal use and for
non-commercial ends, without prejudice to oper-
ational, reliable and effective technical means capable
of protecting the interests of the rightholders; for all
digital private copying, however, fair compensation for
all rightholders must be provided;

4.
The exceptions and limitations provided for in paragraphs
1, 2, 3 and 3a shall only be applied to certain specific cases
and shall not be interpreted in such a way as to allow their
application to be used in a manner which unreasonably
prejudices the rightholders’
legitimate interests or conflicts
with the normal exploitation of their works or other subject
matter.

25.6.1999

EN

Official Journal of the European Communities

C 180/13

CHAPTER III

Article 7

PROTECTION OF TECHNOLOGICAL MEASURES AND
RIGHTS-MANAGEMENT INFORMATION

Article 6

Obligations as to technological measures

1. Member States shall provide adequate legal protection
against the circumvention without authority of any effective
technological measures designed to protect any copyright or
any rights related to copyright as provided by law or the sui
generis right provided for in Chapter III of European Parliament
and Council Directive 96/9/EC, which the person concerned
carries out in the knowledge, or with reasonable grounds to
know that he or she pursues that objective.

2. Member States shall provide adequate legal protection
against any activities, including the manufacture or distribution
of devices, products or components or
the provision of
services, carried out without authority, which:

(a) are promoted, advertised or marketed for the purpose of

circumvention of, or

(b) have only a limited commercially significant purpose or use

other than to circumvent, or

(c) are primarily designed, produced, adapted or performed for
the purpose of enabling or facilitating the circumvention of,

any effective technological measures designed to protect any
copyright or any right related to copyright as provided by
law or the sui generis right provided for in Chapter III of
European Parliament and Council Directive 96/9/EC.

3.
The expression (cid:145)technological measures(cid:146), as used in this
Article, means any technology, device or component that, in
the normal course of its operation, is designed to prevent or
inhibit the infringement of any copyright or any right related
to copyright as provided by law or
the sui generis right
provided for
III of European Parliament and
in Chapter
Council Directive 96/9/EC.

Technological measures shall be deemed (cid:145)effective(cid:146) where the
access to or use of a protected work or other subject matter is
controlled through application of an access code or any other
type of protection process which achieves the protection
objective in an operational and reliable manner with the
the rightholders. Such measures may include
authority of
decryption, descrambling or other
the
work or other subject matter.

transformation of

Obligations concerning rights-management information

1. Member States shall provide for adequate legal protection
against any person performing without authority any of the
following acts:

(a) the

removal or

alteration of

any electronic

rights-

management information;

(b) the distribution, importation for distribution, broadcasting,
communication or making available to the public, of copies
of works or other subject matter protected under this
Directive or under Chapter III of Directive 96/9/EC from
which electronic rights-management has been removed or
altered without authority,

if such person knows, or has reasonable grounds to know, that
facilitating an
by so doing he is
infringement of any copyright or any rights
related to
the sui generis right
copyright as provided by law, or of
provided for in Chapter III of Directive 96/9/EC.

inducing, enabling or

2.
The expression (cid:145)rights-management information(cid:146), as used
in this Article, means any information provided by rightholders
which identifies the work or other subject matter referred to in
this Directive or covered by the sui generis right provided for in
Chapter III of Directive 96/9/EC, the author or any other right-
holder, or information about the terms and conditions of use
of the work or other subject matter, and any numbers or codes
that represent such information.

The first subparagraph shall apply when any of these items of
information are associated with a copy of, or appear
in
connection with the communication to the public of, a work
or other subject matter referred to in this Directive or covered
by the sui generis right provided for in Capter III of Directive
96/9/EC.

CHAPTER IV

COMMON PROVISIONS

Article 8

Sanctions and remedies

set out

1. Member States shall provide appropriate sanctions and
remedies in respect of infringements of the rights and obli-
the
gations
measures necessary to ensure
and
remedies are applied. The sanctions thus provided for shall
be effective, proportionate and dissuasive and act as a
deterrent to further infringement.

in this Directive and shall

take all
sanctions

those

that

2.
Each Member State shall take the measures necessary to
ensure that rightholders whose interests are affected by an
infringing activity carried out on its territory can bring an
action for damages and/or apply for an injunction and,
where appropriate, for the seizure of infringing material.

C 180/14

EN

Official Journal of the European Communities

25.6.1999

Article 9

Application over time

1.
The provisions of this Directive shall apply in respect of
all works and other subject matter referred to in this Directive
which are, by the date referred to in Article 11(1), protected by
the Member States’
legislation in the field of copyright and
related right, or which meet the criteria for protection under
the provisions of this Directive or the provisions referred to in
Article 1(2).

2.
This Directive shall apply without prejudice to any acts of
exploitation performed before the date referred to in Article
11(1).

This Directive shall not affect any contracts concluded or

3.
rights acquired before the date of its entry into force.

4.
Notwithstanding paragraph 3, contracts concerning the
exploitation of works and other subject matter which are in
force on the date referred to in Article 11(1) shall be subject to
this Directive as from five years after its entry into force if they
have not expired before that date.

Article 10

Technical adaptations

1.

Directive 92/100/EEC is hereby amended as follows:

(a) Article 7 is deleted.

(b) Article 10(3) is replaced by the following:

(cid:145)3.
The limitations may only be applied to certain
specific cases and may not be interpreted in such a way
as to allow their application to be used in a manner which
legitimate
unreasonably
the
interests or conflicts with normal exploitation of
their
subject matter.(cid:146)

rightholders’

prejudices

Article 3(2) of Directive 93/98/EEC is replaced by the

2.
following:

(cid:145)2.
The rights of producers of phonograms shall expire 50
years after the fixation is made. However, if the phonogram is
lawfully published during this period, the rights shall expire 50
years from the date of the first such publication.(cid:146)

these provisions,

these shall
When Member States adopt
contain a reference to this Directive or shall be accompanied
by such reference at the time of their official publication. The
procedure for such reference shall be adopted by Member
States.

to the European Parliament,

2.
Not later than at the end of the second year after the date
referred to in paragraph 1 and every three years thereafter, the
Commission shall submit
the
Council and the Economic and Social Committee a report on
the application of this Directive,
inter alia, on the
basis of specific information supplied by the Member States, it
shall examine in particular the application of Articles 5, 6 and
8. Where necessary to ensure the functioning of the internal
it shall submit
market pursuant to Article 14 of the Treaty,
proposals for amendments to this Directive.

in which,

Protection of

3.
Directive shall
protection of copyright.

rights

leave intact and shall

related to copyright under
in no way affect

this
the

4a)
A Contact Committee shall be set up under the aegis of
the Commission. It shall be composed of representatives of the
competent authorities of the Member States. It shall be chaired
by a representative of the Commission and shall meet either on
the initiative of
the
delegation of a Member State.

the Chairman or at

the request of

4b)

The task of the Committee shall be as follows:

(cid:151) To facilitate the effective implementation of this Directive
by organising regular consultation on all questions deriving
from its application;

(cid:151) To facilitate the exchange of

information between the
Member States and the Commission on the situation of
and developments in regulatory activities in the field of
copyright and related rights and sui generis rights, as well
as on the relevant developments in the field of technology;

(cid:151) to examine any developments in the sector for which

consultation appears useful;

Article 12

Entry into force

Article 11

Final provisions

This Directive shall enter into force on the twentieth day
following its publication in the Official Journal of the European
Communities.

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
immediately inform
Directive by 30 June 2000. They shall
the Commission thereof and shall also communicate to the
Commission the text of
the provisions of domestic law
which they adopt in the field governed by this Directive.

Article 13

Addressees

This Directive is addressed to the Member States.