WRITTEN QUESTION P-2249/00 by Diana Wallis (ELDR) to the Commission. Draft Common Position on the Copyright (COM(97) 628).
Date: 2000-06-29
Institutions: European Parliament, Provisional data
Subjects: Council of the European Union, EC Directive, European Parliament, copyright, interpretation of the law

6.3.2001

EN

Official Journal of the European Communities

C 72 E/189

(2001/C 72 E/243)

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 (cid:145)proxy caching(cid:146).

By (cid:145)proxy caching(cid:146) 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)

the Council on the
In line with the amended proposal
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).

the Parliament and of

for a directive of

As in the Commission(cid:146)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 (cid:145)cache copies(cid:146) 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 ((cid:145)provided that the intermediary does not modify the information (cid:133) to obtain data on the
use of the information(cid:146)) 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 (cid:145)proxy
caching(cid:146) 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.