Common Position (EC) No 48/2000 of 28 September 2000 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council on the harmonisation of certain aspects of copyright and related rights in the information society
Date: 2000-09-28
Institutions: Council of the European Union
Subjects: approximation of laws, competition, copyright, data protection, intellectual property, software

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I

(Information)

COUNCIL

COMMON POSITION (EC) No 48/2000

adopted by the Council on 28 September 2000

with a view to adopting Directive 2000/.../EC of the European Parliament and of the Council of ...
on the harmonisation of certain aspects of copyright and related rights in the information society

(2000/C 344/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the Economic and Social
Committee (2),

Acting in accordance with the procedure laid down in Article
251 of the Treaty (3),

Whereas:

(1)

The Treaty provides for the establishment of an internal
market and the institution of a system ensuring that
competition in the internal market is not distorted.
Harmonisation of the laws of the Member States on
copyright and related rights contributes to the achieve-
ment of these objectives.

(2)

The European Council, meeting at Corfu on 24 and
25 June 1994, stressed the need to create a general and

(1) OJ C 108, 7.4.1998, p. 6 and OJ C 180, 25.6.1999, p. 6.
(2) OJ C 407, 28.12.1998, p. 30.
(3) Opinion of the European Parliament of 10 February 1999 (OJ
C 150, 28.5.1999, p. 171), Council Common Position of 28 Sep-
tember 2000 and Decision of the European Parliament of ... (not
yet published in the Official Journal).

flexible legal framework at Community level in order to
foster the development of the information society in
Europe. This requires,
inter alia, the existence of an
internal market for new products and services. Important
Community legislation to ensure such a regulatory
framework is already in place or its adoption is well
under way. Copyright and related rights play an
important role in this context as they protect and
stimulate the development and marketing of new prod-
ucts and services and the creation and exploitation of
their creative content.

The proposed harmonisation will help to implement the
four freedoms of the internal market and relates to
compliance with the fundamental principles of law and
especially of property, including intellectual property,
and freedom of expression and the public interest.

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. This will
safeguard employment and encourage new job creation.

(3)

(4)

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(5)

Technological development has multiplied and diversi-
fied the vectors for creation, production and exploi-
tation. While no new concepts for the protection of
intellectual property are needed, the current law on
copyright and related rights should be adapted and
supplemented to respond adequately to economic realit-
ies such as new forms of exploitation.

(6) Without harmonisation at Community level, legislative
level which have already been
activities at national
initiated in a number of Member States in order to
respond to the technological challenges might result in
significant differences in protection and thereby in
restrictions on the free movement of services and
products incorporating, or based on, intellectual prop-
erty, leading to a refragmentation of the internal market
and legislative inconsistency. The impact of such legislat-
ive differences and uncertainties will become more
significant with the further development of the informa-
tion society, which has already greatly increased
transborder exploitation of intellectual property. This
development will and should further increase. Significant
legal differences and uncertainties in protection may
hinder economies of scale for new products and services
containing copyright and related rights.

(7)

(8)

(9)

The Community legal framework for the protection of
copyright and related rights must, therefore, also be
adapted and supplemented as far as is necessary for the
smooth functioning of the internal market. To that end,
those national provisions on copyright and related rights
which vary considerably from one Member State to
another or which cause legal uncertainties hindering the
smooth functioning of the internal market and the
the information society in
proper development of
Europe should be adjusted, and inconsistent national
responses to the technological developments should be
avoided, while differences not adversely affecting the
functioning of the internal market need not be removed
or prevented.

The various social, societal and cultural implications of
the information society require that account be taken of
the specific features of the content of products and
services.

Any harmonisation of copyright and related rights must
take as a basis a high level of protection, since such
rights are crucial to intellectual creation. Their protection
helps to ensure the maintenance and development
of creativity in the interests of authors, performers,
producers, consumers, culture, industry and the public
at large. Intellectual property has therefore been recog-
nised as an integral part of property.

(10)

If authors or performers 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 work. The investment
required to produce products such as phonograms, films
or multimedia products, and services such as ‘on-
demand’ services, is considerable. Adequate legal protec-
tion of intellectual property rights is necessary in order
to guarantee the availability of such a reward and
provide the opportunity for satisfactory returns on this
investment.

(11) A rigorous, effective system for the protection of
copyright and related rights is one of the main ways of
ensuring that European cultural creativity and pro-
duction receive the necessary resources and of safeguard-
ing the independence and dignity of artistic creators and
performers.

(12) Adequate protection of copyright works and subject-
matter of related rights is also of great importance from
a cultural standpoint. Article 151 of the Treaty requires
the Community to take cultural aspects into account in
its action.

(13) A common search for, and consistent application at
European level of, technical measures to protect works
and other subject-matter and to provide the necessary
information on rights are essential
in so far as the
ultimate aim of these measures is to give effect to the
principles and guarantees laid down in law.

(14) This Directive should seek to promote learning and
culture by protecting works and other subject-matter
while permitting exceptions or limitations in the public
interest for the purpose of education and teaching.

(15) 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 ‘WIPO Copyright Treaty’ and the ‘WIPO
Performances and Phonograms Treaty’, dealing respect-
ively with the protection of authors and the protection
of performers and phonogram producers. Those Treaties
update the international protection for copyright and
related rights significantly, not least with regard to the
‘digital agenda’ and improve the means to fight piracy
worldwide. 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 Community and the Member States is
under way. This Directive also serves to implement a
number of the new international obligations.

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(16) 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 trade marks, and is addressed hori-
zontally in Directive 2000/31/EC of
the European
Parliament and of the Council of 8 June 2000 on certain
legal aspects of information society services, in particular
electronic commerce, in the internal market (Directive
on electronic commerce) (1), which clarifies and harmon-
ises various legal issues relating to information society
services including electronic commerce. This Directive
should be implemented within a timescale similar to that
for the implementation of the Directive on electronic
commerce, since that Directive provides a harmonised
framework of principles and provisions relevant, inter
alia, to important parts of this Directive. This Directive
is without prejudice to provisions relating to liability in
that Directive.

(17)

It is necessary, especially in the light of the requirements
arising out of the digital environment, to ensure that
collecting societies achieve a higher level of rationalis-
ation and transparency with regard to compliance with
competition rules.

(18) This Directive is without prejudice to the arrangements
in the Member States concerning the management of
rights such as extended collective licences.

(19) The moral rights of rightholders should be exercised
according to the legislation of
the Member States
and the provisions of the Berne Convention for the
Protection of Literary and Artistic Works, of the WIPO
Copyright Treaty and of the WIPO Performances and
Phonograms Treaty. Such moral rights remain outside
the scope of this Directive.

(20) This Directive is based on principles and rules already
laid down in the Directives currently in force in this area,
in particular Directives 91/250/EEC (2), 92/100/EEC (3),
93/83/EEC (4), 93/98/EEC (5) and 96/9/EC (6), and it

(1) OJ L 178, 17.7.2000, p. 1.
(2) Council Directive 91/250/EEC of 14 May 1991 on the legal
protection of computer programs (OJ L 122, 17.5.1991, p. 42).
Directive as amended by Directive 93/98/EEC.

(3) 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 (OJ L 346, 27.11.1992, p. 61).
Directive as amended by Directive 93/98/EEC.

(4) Council Directive 93/83/EEC of 27 September 1993 on the
coordination of certain rules concerning copyright and rights
related to copyright applicable to satellite broadcasting and cable
retransmission (OJ L 248, 6.10.1993, p. 15).

(5) Council Directive 93/98/EEC of 29 October 1993 harmonising
the term of protection of copyright and certain related rights (OJ
L 290, 24.11.1993, p. 9).

(6) Directive 96/9/EC of the European Parliament and of the Council
of 11 March 1996 on the legal protection of databases (OJ L 77,
27.3.1996, p. 20).

develops those principles and rules and places them in
the context of the information society. The provisions
of this Directive should be without prejudice to the
provisions of those Directives, unless otherwise provided
in this Directive.

(21) This Directive should define the scope of the acts covered
by the reproduction right with regard to the different
beneficiaries. This should be done in conformity with
the acquis communautaire. A broad definition of these acts
is needed to ensure legal certainty within the internal
market.

(22) The objective of proper support for the dissemination
of culture must not be achieved by sacrificing strict
protection of rights or by tolerating illegal forms of
distribution of counterfeited or pirated works.

(23) This Directive should harmonise further the author’s
right of communication to the public. This right should
be understood in a broad sense covering all communi-
cation to the public not present at the place where the
communication originates. This right should cover any
such transmission or retransmission of a work to the
public by wire or wireless means, including broadcasting.
This right should not cover any other acts.

(24) The right to make available to the public subject-matter
referred to in Article 3(2) should be understood as
covering all acts of making available such subject-matter
to members of the public not present at the place where
the act of making available originates, and as not
covering any other acts.

(25) 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. It should
be made clear that all rightholders recognised by this
Directive should have an exclusive right to make avail-
able to the public copyright works or any other subject-
matter by way of interactive on-demand transmissions.
Such interactive on-demand transmissions are character-
ised by the fact that members of the public may access
them from a place and at a time individually chosen by
them.

(26) With regard to the making available in on-demand
services by broadcasters of their radio or television
productions
incorporating music from commercial
phonograms as an integral part thereof, collective licens-
ing arrangements are to be encouraged in order to
facilitate the clearance of the rights concerned.

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(27) 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.

exceptions and limitations should be defined more
harmoniously. The degree of their harmonisation should
be based on their impact on the smooth functioning of
the internal market.

to control distribution of

(28) Copyright protection under this Directive includes the
exclusive right
the work
incorporated in a tangible article. 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. 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. Rental and lending
rights for authors have been established in Directive
92/100/EEC. The distribution right provided for in this
Directive is without prejudice to the provisions relating
to the rental and lending rights contained in Chapter I
of that Directive.

(32) This Directive provides for an exhaustive enumeration
of exceptions and limitations to the reproduction right
and the right of communication to the public. Some
exceptions or limitations only apply to the reproduction
right, where appropriate. This list takes due account of
the different legal traditions in Member States, while, at
the same time, aiming to ensure a functioning internal
market. Member States should arrive at a coherent
application of these exceptions and limitations, which
will be assessed when reviewing implementing legis-
lation in the future.

(29) The question of exhaustion does not arise in the case of
services and on-line services in particular. This also
applies with regard to a material copy of a work or other
subject-matter made by a user of such a service with the
consent of the rightholder. Therefore, the same applies
to rental and lending of the original and copies of works
or other subject-matter which are services by nature.
Unlike CD-ROM or CD-I, where the intellectual property
is incorporated in a material medium, namely an item
of goods, every on-line service is in fact an act which
should be subject to authorisation where the copyright
or related right so provides.

(30) The rights referred to in this Directive may be transferred,
to the granting of contractual
assigned or subject
licences, without prejudice to the relevant national
legislation on copyright and related rights.

(31) 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. The exist-
ing exceptions and limitations to the rights as set out by
the Member States have to be reassessed in the light of
the new electronic environment. Existing differences in
the exceptions and limitations to certain restricted acts
have direct negative effects on the functioning of the
internal market of copyright and related rights. Such
differences could well become more pronounced in view
of the further development of transborder exploitation
of works and cross-border activities. In order to ensure
the proper functioning of the internal market, such

(33) The exclusive right of reproduction should be subject
to an exception to allow certain acts of temporary
reproduction, which are transient or incidental repro-
ductions, forming an integral and essential part of a
technological process carried out for the sole purpose of
enabling either 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. The acts
of reproduction concerned should have no separate
economic value on their own. To the extent that they
meet these conditions, this exception should include
acts which enable browsing as well as acts of caching to
take place, including those which enable transmission
systems to function efficiently, provided that the inter-
mediary does not modify the information and does not
interfere with the lawful use of technology, widely
recognised and used by industry, to obtain data on the
use of the information. A use should be considered
lawful where it is authorised by the rightholder or not
restricted by law.

(34) Member States should be given the option of providing
for certain exceptions or limitations for cases such as
educational and scientific purposes, for the benefit of
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.

(35)

In certain cases of exceptions or limitations, rightholders
should receive fair compensation to compensate them
adequately for the use made of their protected works
or other subject-matter. When determining the form,
detailed arrangements and possible level of such fair

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compensation, account should be taken of the particular
circumstances of each case. When evaluating these
circumstances, a valuable criterion would be the possible
harm to the rightholders resulting from the act in
question.
In cases where rightholders have already
received payment in some other form, for instance as
part of a licence fee, no specific or separate payment
may be due. The level of fair compensation should take
full account of
technological
protection measures referred to in this Directive. In
certain situations where the prejudice to the rightholder
would be minimal, no obligation for payment may arise.

the degree of use of

(40) Member States may provide for an exception or limi-
tation for the benefit of certain non-profit making
establishments, such as publicly accessible libraries and
equivalent institutions, as well as archives. However, this
should be limited to certain special cases covered by the
reproduction right. Such an exception or limitation
should not cover uses made in the context of on-line
delivery of protected works or other subject-matter. This
Directive should be without prejudice to the Member
States’ option to derogate from the exclusive public
lending right in accordance with Article 5 of Directive
92/100/EEC. Therefore, specific contracts or licences
should be promoted which, without creating imbalances,
favour such establishments and the disseminative pur-
poses they serve.

(36) The Member States may provide for fair compensation
for rightholders also when applying the optional pro-
visions on exceptions or limitations which do not
require such compensation.

(37) Existing national schemes on reprography, where they
exist, do not create major barriers to the internal market.
Member States should be allowed to provide for an
exception or limitation in respect of reprography.

(38) Member States should be allowed to provide for an
exception or limitation to the reproduction right for
certain types of reproduction of audio, visual and
audiovisual material for private use, accompanied by fair
compensation. This may include the introduction or
continuation of remuneration schemes to compensate
for the prejudice to rightholders. Although differences
between those remuneration schemes affect the func-
tioning of the internal market, those differences, with
respect to analogue private reproduction, should not
have a significant impact on the development of the
information society. Digital private copying is likely to
be more widespread and have a greater economic
impact. Due account should therefore be taken of the
differences between digital and analogue private copying
and a distinction should be made in certain respects
between them.

(39) When applying the exception or limitation on private
copying, Member States should take due account of
technological and economic developments, in particular
with respect to digital private copying and remuneration
schemes, when effective
technological protection
measures are available. Such exceptions or limitations
should not inhibit the use of technological measures or
their enforcement against circumvention.

(41) When applying the exception or limitation in respect of
ephemeral recordings made by broadcasting organis-
ations it is understood that a broadcaster’s own facilities
include those of a person acting on behalf of and under
the responsibility of the broadcasting organisation.

(42) When applying the exception or limitation for non-
commercial educational and scientific research purposes,
including distance learning, the non-commercial nature
of the activity in question should be determined by that
activity as such. The organisational structure and the
means of funding of the establishment concerned are
not the decisive factors in this respect.

(43)

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.

(44) When applying the exceptions and limitations provided
for in this Directive, they should be exercised in accord-
ance with international obligations. Such exceptions and
limitations may not be applied in a way which prejudices
the legitimate interests of the rightholder or which
conflicts with the normal exploitation of his work or
other subject-matter. The provision of such exceptions
or limitations by Member States should, in particular,
duly reflect the increased economic impact that such
exceptions or limitations may have in the context of the
new electronic environment. Therefore, the scope of
certain exceptions or limitations 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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(45) The exceptions and limitations referred to in Article 5(2),
(3) and (4) should not, however, prevent the definition
of contractual relations designed to ensure fair compen-
sation for the rightholders in so far as permitted by
national law.

(46) Recourse to mediation could help users and rightholders
to settle disputes. The 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.

(50) Such a harmonised legal protection does not affect
the specific provisions on protection provided for by
Directive 91/250/EEC. In particular, it should not apply
to the protection of technological measures used in
connection with computer programs, which is exclus-
ively addressed in that Directive. It should neither inhibit
nor prevent the development or use of any means of
circumventing a technological measure that is necessary
to enable acts to be undertaken in accordance with the
terms of Article 5(3) or Article 6 of Directive
91/250/EEC. Articles 5 and 6 of that Directive exclus-
ively determine exceptions to the exclusive rights appli-
cable to computer programs.

(47) Technological development will allow rightholders to
make use of technological measures designed to prevent
or restrict acts not authorised by the rightholders of any
copyright, rights related to copyright or the sui generis
right in databases. The danger, however, exists that
illegal activities might be carried out in order to enable
or facilitate the circumvention of the technical protection
provided by these measures. In order to avoid frag-
mented legal approaches that could potentially hinder
the functioning of the internal market, there is a need
to provide for harmonised legal protection against
circumvention of effective technological measures and
against provision of devices and products or services to
this effect.

(48) Such legal protection should be provided in respect of
technological measures that effectively restrict acts not
authorised by the rightholders of any copyright, rights
related to copyright or the sui generis right in databases
without, however, preventing the normal operation of
electronic equipment and its technological development.
Such legal protection implies no obligation to design
devices, products, components or services to correspond
to technological measures, so long as such device,
product, component or service does not otherwise fall
under the prohibition of Article 6. Such legal protection
should respect proportionality and should not prohibit
those devices or activities which have a commercially
significant purpose or use other than to circumvent the
technical protection. In particular, this protection should
not hinder research into cryptography.

(49) The legal protection of technological measures is without
prejudice to the application of any national provisions
which may prohibit the private possession of devices,
products or components for the circumvention of
technological measures.

(51) The legal protection of technological measures applies
without prejudice to public policy, as reflected in
Article 5, or public security. Member States should
promote voluntary measures taken by rightholders,
including the conclusion and implementation of agree-
ments between rightholders and other parties concerned,
to accommodate achieving the objectives of certain
exceptions or limitations provided for in national law in
accordance with this Directive. In the absence of such
voluntary measures or agreements within a reasonable
period of time, Member States should take appropriate
measures to ensure that rightholders provide benefici-
aries of such exceptions or limitations with appropriate
means of benefiting from them, by modifying an
implemented technological measure or by other means.
However, in order to prevent abuse of such measures
taken by rightholders, including within the framework
of agreements, or taken by a Member State, any techno-
logical measures applied in implementation of such
measures should enjoy legal protection.

(52) When implementing an exception or limitation for
private copying in accordance with Article 5(2)(b), Mem-
ber States should likewise promote the use of voluntary
measures to accommodate achieving the objectives of
such exception or limitation. If, within a reasonable
period of time, no such voluntary measures to make
reproduction for private use possible have been taken,
Member States may take measures to enable beneficiaries
of the exception or limitation concerned to benefit from
it. Voluntary measures taken by rightholders, including
agreements between rightholders and other parties con-
cerned, as well as measures taken by Member States,
do not prevent rightholders from using technological
measures which are consistent with the exceptions
or limitations on private copying in national law in
accordance with Article 5(2)(b), taking account of the
condition of fair compensation under that provision and

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the possible differentiation between various conditions
of use in accordance with Article 5(5), such as con-
trolling the number of reproductions. In order to prevent
abuse of such measures, any technological measures
applied in their implementation should enjoy legal
protection.

(53)

Important progress has been made in the international
standardisation of technical systems of identification of
works and protected subject-matter in digital format.
In an increasingly networked environment, differences
between technological measures could lead to an incom-
patibility of systems within the Community. Compati-
bility and interoperability of the different systems should
be encouraged. It would be highly desirable to encourage
the development of global systems.

(54) Technological development will

facilitate the distri-
bution of works, notably on networks, and this will
entail the need for rightholders to identify better 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. Rightholders should be encouraged to
use markings indicating, in addition to the information
referred to above, inter alia, their authorisation when
putting works or other subject-matter on networks.

(55) There is, however, the danger that illegal activities might
be carried out in order to remove or alter the electronic
copyright-management information attached to it, or
otherwise to distribute, import for distribution, broad-
cast, communicate to the public or make available to
the public works or other protected subject-matter from
which such information has been removed without
authority. In order to avoid fragmented legal approaches
that could potentially hinder the functioning of the
internal market, there is a need to provide for harmon-
ised legal protection against any of these activities.

(57) Member States should provide for effective sanctions
and remedies for infringements of rights and obligations
as set out in this Directive. They should take all the
measures necessary to ensure that those sanctions and
remedies are applied. The sanctions thus provided for
should be effective, proportionate and dissuasive and
should include the possibility of seeking damages and/or
injunctive relief and, where appropriate, of applying for
seizure of infringing material.

(58)

In the digital environment, in particular, the services of
intermediaries may increasingly be used by third parties
for infringing activities. In many cases such intermediar-
ies are best placed to bring such infringing activities to
an end. Therefore, without prejudice to any other
sanctions and remedies available, rightholders should
have the possibility of applying for an injunction against
an intermediary who carries a third party’s infringement
of a protected work or other subject-matter in a network.
This possibility should be available even where the acts
carried out by the intermediary are exempted under
Article 5. The conditions and modalities relating to such
injunctions should be left to the national law of the
Member States.

(59) The protection provided under this Directive should be
without prejudice to national or Community legal
provisions in other areas, such as industrial property,
data protection, conditional access, access to public
documents, and the rule of media exploitation chron-
ology, which may affect the protection of copyright or
related rights.

(60)

In order to comply with the WIPO Performances
and Phonograms Treaty, Directives 92/100/EEC and
93/98/EEC should be amended,

HAVE ADOPTED THIS DIRECTIVE:

(56) Any such rights-management

information systems
referred to above may, depending on their design, at the
same time process personal data about the consumption
patterns of protected subject-matter by individuals and
allow for tracing of on-line behaviour. These technical
means, in their technical functions, should incorporate
privacy
in accordance with Directive
95/46/EC of the European Parliament and of the Council
of 24 October 1995 on the protection of individuals
with regard to the processing of personal data and the
free movement of such data (1).

safeguards

CHAPTER I

OBJECTIVE AND SCOPE

Article 1

Scope

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

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

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2.
Except in the cases referred to in Article 11, this Directive
shall leave intact and shall in no way affect existing Community
provisions relating to:

(a)

the legal protection of computer programs;

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:

rental right, lending right and certain rights related to
copyright in the field of intellectual property;

(a)

for performers, of fixations of their performances;

(b)

for phonogram producers, of their phonograms;

(b)

(c)

(d)

copyright and related rights applicable to broadcasting of
programmes by satellite and cable retransmission;

the term of protection of copyright and certain related
rights;

(c)

(d)

for the producers of the first fixations of films, of the
original and copies of their films;

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

fixations of

3.
The rights referred to in paragraphs 1 and 2 shall not be
exhausted by any act of communication to the public or
making available to the public as set out in this Article.

Article 4

Distribution right

(e)

the legal protection of databases.

CHAPTER II

RIGHTS AND EXCEPTIONS

Article 2

Reproduction right

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

1. Member States shall provide for authors, in respect of
the original of their works or of copies thereof, the exclusive
right to authorise or prohibit any form of distribution to the
public by sale or otherwise.

(a)

for authors, of their works;

(b)

for performers, of fixations of their performances;

(c)

for phonogram producers, of their phonograms;

(d)

(e)

for the producers of the first fixations of films, in respect
of the original and copies of their films;

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

fixations of

2.
The distribution right shall not be exhausted within the
Community in respect of the original or copies of the work,
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 and limitations

Article 3

Right of communication to the public of works and right
of making available to the public other subject-matter

1. Member States shall provide authors with the exclusive
right to authorise or prohibit any communication to the public
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.

1.
Temporary acts of reproduction referred to in Article 2,
which are transient or incidental, which are an integral and
essential part of a technological process whose sole purpose is
to enable:

(a)

a transmission in a network between third parties by an
intermediary or

(b)

a lawful use

of a work or other subject-matter to be made, and which have
no independent economic significance, shall be exempted
from the reproduction right provided for in Article 2.

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2. Member States may provide for exceptions or limitations
to the reproduction right provided for in Article 2 in the
following cases:

extent justified by the informatory purpose and as long
as, whenever possible the source, including the author’s
name, is indicated;

(a)

(b)

(c)

(d)

(e)

in respect of reproductions on paper or any similar
medium, effected by the use of any kind of photographic
technique or by some other process having similar effects,
with the exception of sheet music, provided that the
rightholders receive fair compensation;

in respect of reproductions on any medium made for the
private use of a natural person and for non-commercial
ends, on condition that the rightholders receive fair
compensation which takes account of the application or
non-application of technological measures referred to in
Article 6 to the work or subject-matter concerned;

in respect of specific acts of reproduction made by
publicly accessible libraries, educational establishments
or museums, or by archives, which are not for direct or
indirect economic or commercial advantage;

in respect of ephemeral recordings of works made by
broadcasting organisations by means of their own facili-
ties and for their own broadcasts; the preservation of
these recordings in official archives may, on the ground
of their exceptional documentary character, be permitted;

in respect of reproductions of broadcasts made by social
institutions pursuing non-commercial purposes, such as
hospitals or prisons, on condition that the rightholders
receive fair compensation.

3. Member States may provide for exceptions or limitations
to the rights provided for 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, whenever possible, the
source, including the author’s name, is indicated and to
the extent justified by the non-commercial purpose to be
achieved;

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

(c)

reproduction by the press, communication to the public
or making available of published articles on current
economic, political or religious topics or of broadcast
works or other subject-matter of the same character, in
cases where such use is not expressly reserved, and as
is
long as the source,
indicated, or use of works or other subject-matter in
connection with the reporting of current events, to the

including the author’s name,

(d)

(e)

(f)

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, whenever possible, the source, including
the author’s name, is indicated, and that their use is in
accordance with fair practice, and to the extent required
by the specific purpose;

use for the purposes of public security or to ensure
the proper performance or reporting of administrative,
parliamentary or judicial proceedings;

use of political speeches as well as extracts of public
lectures or similar works or subject-matter to the extent
justified by the informatory purpose and provided that,
whenever possible, the source,
including the author’s
name, is indicated;

(g)

use during religious celebrations or official celebrations
organised by a public authority;

(h) use of works, such as works of architecture or sculpture,

made to be located permanently in public places;

(i)

(j)

incidental inclusion of a work or other subject-matter in
other material;

use for the purpose of advertising the public exhibition
or sale of artistic works, to the extent necessary to
promote the event;

(k) use for the purpose of caricature, parody or pastiche;

(l)

use in connection with the demonstration or repair of
equipment;

(m) use of an artistic work in the form of a building or a
drawing or plan of a building for the purposes of
reconstructing the building;

for the
(n) use by communication or making available,
purpose of research or private study,
to individual
members of the public by dedicated terminals on the
premises of establishments referred to in paragraph 2(c)
of works and other subject-matter not subject to purchase
or licensing terms which are contained in their collections;

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(o) use in certain other cases of minor importance where
exceptions or limitations already exist under national law,
provided that they only concern analogue uses and do
not affect the free circulation of goods and services
within the Community, without prejudice to the other
exceptions and limitations contained in this Article.

4. Where the Member States may provide for an exception
or limitation to the right of reproduction pursuant to para-
graphs 2 and 3, they may provide similarly for an exception
or limitation to the right of distribution as referred to in
Article 4 to the extent justified by the purpose of the authorised
act of reproduction.

5.
The exceptions and limitations provided for in para-
graphs 1, 2, 3 and 4 shall only be applied in certain special
cases which do not conflict with a normal exploitation of
the work or other subject-matter and do not unreasonably
prejudice the legitimate interests of the rightholder.

CHAPTER III

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 of any effective technological
measures, which the person concerned carries out in the
knowledge, or with reasonable grounds to know, that he or
she is pursuing that objective.

2. Member States shall provide adequate legal protection
against the manufacture,
import, distribution, sale, rental,
advertisement for sale or rental, or possession for commercial
purposes of devices, products or components or the provision
of services 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 circumven-
tion of

any effective technological measures.

3.
For the purposes of this Directive, the expression ‘techno-
logical measures’ means any technology, device or component
that, in the normal course of its operation, is designed to
prevent or restrict acts, in respect of works or other subject-
matter, which are not authorised by the rightholder of any
copyright or any right related to copyright as provided for by
law or the sui generis right provided for in Chapter III of
Directive 96/9/EC. Technological measures shall be deemed
‘effective’ where the use of a protected work or other subject-
matter is controlled by the rightholders through application of
an access control or protection process, such as encryption,
scrambling or other transformation of the work or other
subject-matter or a copy control mechanism, which achieves
the protection objective.

4.
Notwithstanding the legal protection provided for in
paragraph 1, in the absence of voluntary measures taken by
rightholders, including agreements between rightholders and
other parties concerned, Member States shall take appropriate
measures to ensure that rightholders make available to the
beneficiary of an exception or limitation provided for in
national law in accordance with Article 5(2)(a), (c), (d) and (e)
and Article 5(3)(a), (b) or (e) the means of benefiting from that
exception or limitation, to the extent necessary to benefit from
that exception or limitation and where that beneficiary has
legal access to the protected work or subject-matter concerned.

A Member State may also take such measures in respect of a
beneficiary of an exception or limitation provided for in
accordance with Article 5(2)(b), unless reproduction for private
use has already been made possible by rightholders to the
extent necessary to benefit from the exception or limitation
concerned and in accordance with the provisions of
Article 5(2)(b) and Article 5(5), without preventing right-
holders from adopting adequate measures regarding the num-
ber of reproductions in accordance with these provisions.

The technological measures applied voluntarily by right-
holders, including those applied in implementation of volun-
tary agreements, and technological measures applied in
implementation of the measures taken by Member States, shall
enjoy the legal protection provided for in paragraph 1.

The provisions of the first and second subparagraphs shall not
apply to works or other subject-matter made available to the
public on agreed contractual terms in such a way that members
of the public may access them from a place and at a time
individually chosen by them.

When this Article is applied in the context of Directives
92/100/EEC and 96/9/EC, this paragraph shall apply mutatis
mutandis.

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Article 7

Obligations concerning rights-management information

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

(a)

(b)

the removal or alteration of any electronic rights-
management information;

the distribution,
importation for distribution, broad-
casting, communication or making available to the public
of works or other subject-matter protected under this
Directive or under Chapter III of Directive 96/9/EC from
which electronic rights-management
information has
been removed or altered without authority, if such person
knows, or has reasonable grounds to know, that by so
doing he is inducing, enabling, facilitating or concealing
an infringement of any copyright or any rights related to
copyright as provided by law, or of the sui generis right
provided for in Chapter III of Directive 96/9/EC.

2.
For the purposes of this Directive, the expression ‘rights-
management information’ 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 rightholder, 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 is associated with a copy of, or appears 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 Chapter III of Directive
96/9/EC.

CHAPTER IV

COMMON PROVISIONS

Article 8

Sanctions and remedies

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 as well as of
devices, products or components referred to in Article 6(2).

3. Member States shall ensure that rightholders are in a
position to apply for an injunction against intermediaries
whose services are used by a third party to infringe a copyright
or related right.

Article 9

Continued application of other legal provisions

This Directive shall be without prejudice to provisions concern-
ing in particular patent rights, trade marks, design rights, utility
models, topographies of semi-conductor products, type faces,
conditional access, access to cable of broadcasting services,
protection of national treasures, legal deposit requirements,
laws on restrictive practices and unfair competition, trade
secrets, security, confidentiality, data protection and privacy,
access to public documents, the law of contract.

Article 10

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, on ... (*), protected by the Member States’ legislation
in the field of copyright and related rights, or which meet the
criteria for protection under the provisions of this Directive or
the provisions referred to in Article 1(2).

This Directive shall apply without prejudice to any acts

2.
concluded and rights acquired before ... (*).

Article 11

Technical adaptations

1. Member States shall provide appropriate sanctions and
remedies in respect of infringements of the rights and obliga-
tions set out in this Directive and shall take all the measures
necessary to ensure that those sanctions and remedies are
applied. The sanctions thus provided for shall be effective,
proportionate and dissuasive.

1.

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

(a) Article 7 shall be deleted;

(*) Two years after the date of entry into force of this Directive.

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(b) Article 10(3) shall be replaced by the following:

The limitations shall only be applied in certain
‘3.
special cases which do not conflict with a normal
exploitation of the subject-matter and do not unreason-
ably prejudice the legitimate interests of the rightholder.’

Article 3(2) of Directive 93/98/EEC shall be replaced by

2.
the following:

‘2.
The rights of producers of phonograms shall
expire 50 years after the fixation is made. However, if the
phonogram has been lawfully published within this
period, the said rights shall expire 50 years from the date
of the first lawful publication. If no lawful publication
has taken place within the period mentioned in the
first sentence, and if the phonogram has been lawfully
communicated to the public within this period, the said
rights shall expire 50 years from the date of the first
lawful communication to the public.

However, where through the expiry of the term of
protection granted pursuant to this paragraph in its
version before amendment by Directive 2000/.../EC of
the European Parliament and of the Council of ... on the
harmonisation of certain aspects of copyright and related
rights in the information society (*) the rights of producers
of phonograms are no longer protected on ... (**), this
paragraph shall not have the effect of protecting those
rights anew.

(*) OJ L ... .

(**) Two years after the entry into force of this Directive.’

Article 12

Final provisions

1.
Not later than ... (*) and every three years thereafter, the
Commission shall submit to the European Parliament, the
Council and the Economic and Social Committee a report on
the application of this Directive, in which, 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 in the light of the development of the digital market. In the
case of Article 6, it shall examine in particular whether that
Article confers a sufficient level of protection and whether acts
which are permitted by law are being adversely affected by the
use of effective technological measures. Where necessary, in
particular to ensure the functioning of the internal market
pursuant to Article 14 of the Treaty, it shall submit proposals
for amendments to this Directive.

Protection of rights related to copyright under this
in no way affect the

leave intact and shall

2.
Directive shall
protection of copyright.

3.
A contact committee is hereby established. 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
chairman or at the request of the delegation of a Member
State.

4.

The tasks of the committee shall be as follows:

(a)

(b)

(c)

to organise consultations on all questions deriving from
the application of this Directive;

to facilitate the exchange of information on relevant
developments in legislation and case-law, as well as
relevant economic, social, cultural and technological
developments;

to act as a forum for the assessment of the digital market
in works and other items, including private copying and
the use of technological measures.

Article 13

Implementation

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before... (**). They shall forthwith inform the Com-
mission thereof.

When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such
reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.

2. Member States shall communicate to the Commission
the text of the provisions of domestic law which they adopt in
the field governed by this Directive.

Article 14

Entry into force

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

(*) Four years after the date of entry into force of this Directive.

(**) Two years after the entry into force of this Directive.

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Article 15

Addressees

Done at ...

For the European Parliament

For the Council

This Directive is addressed to the Member States.

The President

The President

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STATEMENT OF THE COUNCIL’S REASONS

I.

INTRODUCTION

1. On 21 January 1998, the Commission submitted a proposal for a European Parliament and
Council Directive on the harmonisation of certain aspects of copyright and related rights in the
information society (1), based on Articles 47(2), 55 and 95 of the EC Treaty.

2.

3.

4.

5.

II.

AIM

6.

The Economic and Social Committee delivered its opinion on 9 September 1998 (2).

The European Parliament delivered its opinion at first reading on 10 February 1999 (3).

The Commission submitted an amended proposal on 25 May 1999 (4).

The Council adopted its Common Position according to Article 251 of the EC Treaty on
28 September 2000.

The aim of the Commission’s proposal is to provide a harmonised and appropriate legal
framework for copyright and related rights in the information society.
It adjusts and
complements the existing framework so as to ensure the smooth functioning of the internal
market and bring about a favourable environment which protects and stimulates creativity and
innovative activities within the Community. The proposal is also intended to implement the
new international obligations resulting from the WIPO Copyright Treaty (WCT) and the WIPO
Performances and Phonograms Treaty (WPPT) concluded in Geneva on 20 December 1996.

III. COMMON POSITION

Recitals

7.

The Council has amended, deleted or merged a number of recitals appearing in the
Commission’s amended proposal and has adopted a few additional ones. Reference to the main
changes in the recitals is made below under the relevant Articles.

Articles

Article 1 (scope)

8.

The Council has taken on board the new wording of this Article, as proposed by the
Commission in its amended proposal, apart from the term ‘specific’, which was considered
unnecessary and capable of creating confusion as regards the relationship between the
provisions of this Directive and those provided by existing Community Directives in the field
of copyright or related rights. At the end of recital 20, the Council has adopted additional
wording making it clear that, unless otherwise provided in this Directive, provisions in existing,
Community Directives in the field of copyright or related rights prevail.

(1) OJ C 108, 7.4.1998, p. 6.
(2) OJ C 407, 28.12.1998, p. 30.
(3) OJ C 150, 28.5.1999, p. 171.
(4) OJ C 180, 25.6.1999, p. 6.

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Article 2 (reproduction right)

9.

In its amendment 29, the European Parliament had suggested the deletion of the terms ‘of the
original and copies’ in Article 2(a). Both the Commission and the Council have accepted this
suggestion.

Article 3 (right of communication to the public of works and right of making available to the public other
subject matter)

10. The Council has slightly reworded both the title and paragraph 2 of this Article with a view to
making clear that, with respect to subject matter other than works, the present Directive will
regulate only the right of making available to the public and not the right of communication
to the public, which has already been dealt with in Article 8 of Council Directive 92/100/EEC
of 19 November 1992 (1).

11.

In line with the provision of Article 2(a) (see point 9), the Council decided to delete the terms
‘originals and copies of’ in Article 3(1).

12. With its amendment 13, the European Parliament had suggested, inter alia, that the term
‘private communication’ in recital 16 (now recital 25) be replaced by ‘direct representation or
performance’. In its amended proposal, the Commission took on board this suggestion. The
Council, however, considered that, in the absence of an accepted Community-wide definition
thereof, these terms risked creating legal uncertainty. Therefore, in an attempt to delineate in a
clear and positive manner which acts fall within the scope of the rights dealt with in Article 3,
the Council preferred to delete these terms and to clarify the issue in recitals 23 and 24.

13.

In its amendment 31, the European Parliament had suggested an additional paragraph to
Article 3 along the lines of the agreed statement concerning Article 8 of WCT. In its amended
proposal the Commission had taken on board this suggestion. Since, however, a corresponding
statement already appeared in recital 17 of the Commission’s amended proposal, the Council
preferred to include this statement in the recitals only (see recital 27), considering that as a
clarifying statement this did not belong in the main body of the Directive.

Article 4 (distribution right)

14. While accepting in substance Article 4 as set out in the Commission’s amended proposal, the
Council has amended slightly the wording of the first paragraph of this Article with a view to
aligning it with the wording of the definitions contained in Articles 2 and 3, as well as in
existing Community Directives in the field of copyright and related rights.

15. The Council has also inserted additional text in recital 28 in order to make clear that the right
of distribution for authors, provided for in Article 4(1) of the present Directive, is without
prejudice to authors’ rental and lending rights, dealt with in Directive 92/100/EEC.

16. Furthermore, the Council specified in recital 29 that the principle of exhaustion, set out in
Article 4(2) of the present Directive, would not apply to the rental and lending rights provided
for in Directive 92/100/EEC (see also Article 1(4) of that Directive).

(1) OJ L 346, 27.11.1992, p. 61.

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Article 5 (exceptions to Articles 2, 3 and 4)

Paragraph 1

17. Paragraph 1 sets out the only mandatory exception to any of the rights provided for in
Articles 2, 3 and 4. In its amended proposal, the Commission had taken on board part of the
European Parliament’s amendment 33 concerning the first paragraph of Article 5. In its
Common Position, the Council has further amended this provision in order to strike a fair
balance between the interests of rightholders and those of intermediaries (such as Internet
service providers) and users. According to the Council’s text, the conditions ‘transient’ and
‘incidental’ are no longer cumulative, but alternative. The Council’s provision also distinguishes
between purely technical acts, the sole purpose of which is to enable the mere transmission in
a network between third parties by an intermediary of a work or other subject matter,
irrespective of the use to be made of it by the recipient of the transmission, and acts, the sole
purpose of which is to enable a use to be made, which must be lawful, of a work or other
subject matter. In both cases, the other conditions of this provision must also be fulfilled in
order to benefit from the exemption. In recital 33, the Council has added a definition of the
term ‘lawful use’, largely inspired by the European Parliament’s amendment 33. The Council
has also included in recital 33 wording used in the Directive on electronic commerce (1) and
has adopted technical adjustments to recital 16 which take into consideration the fact that that
Directive has been adopted in the mean time.

Paragraph 2

18. Paragraphs 2, 3 and 4 contain optional exceptions to the rights provided for in Articles 2, 3

and 4.

19. With its amendments 34, 36, 37 and 41 the European Parliament had introduced the notion
of ‘fair compensation’ as a condition for a number of exceptions. In its amended proposal, the
Commission had taken on board the abovementioned amendments, albeit without providing
any definition of the term ‘fair compensation’. The Council decided to provide in recital 35
guidance on the application of this new concept. Finally, the Council specified in the new
fair
recital 36 that nothing prevented Member States from applying the condition of
compensation to exceptions not explicitly required by the Directive.

20. With its amendment 34, the European Parliament had suggested that sheet music be excluded
from the exception for reprographic reproduction and that the latter be made conditional on
fair compensation for the rightholders. Both the Commission and the Council have been able
to accept these suggestions.

21. The European Parliament had suggested, in its amendments 36 and 37, that analogue and
digital private copying be dealt with in two separate subparagraphs. The Commission had
followed this suggestion in its amended proposal. The Council, however, considered that such
a differentiation between analogue and digital private copying should not be made in Article 5;
therefore, it decided to merge subparagraphs (b) and (b)(a) of Article 5(2) of the Commission’s
amended proposal in one single subparagraph (b), while acknowledging in recitals 38 and 44
the need of distinguishing between analogue and digital private copying in certain respects (see
also point 44, second indent).

(1) OJ L 178, 17.7.2000, p. 1.

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22. With its amendments 36 and 37, the European Parliament further suggested that the exception
for private copying be made conditional on fair compensation for the rightholders. Both the
Commission and the Council have accepted this suggestion.

23. With the same amendments, the European Parliament had also suggested the addition to
‘private use’ of the terms ‘and purely personal’. The Commission had accepted to use the terms
‘and strictly personal’ in its amended proposal. The Council deleted these terms, considering
that they were either redundant or unduly restrictive.

24. Furthermore, the Council:

— replaced the reference to ‘audio, visual or audiovisual analogue/digital recording media’ in
the Commission’s amended proposal with ‘any medium’ in order to simplify the wording,

— used the expression ‘made for the private use of a natural person’ to cover not only
reproductions made by a natural person but also reproductions made on behalf of such a
person,

— provided that Member States, when assessing what compensation would be fair for private
copying, should take account of the application or non-application of technological
measures referred to in Article 6.

25. With its amendment 38, the European Parliament had suggested specifying in Article 5(2)(c)
that only acts of reproduction done for documentation or conservation purposes could be
exempted. The Commission took on board this suggestion. The Council, however, preferred a
more flexible formulation, which would allow Member States to clear also acts of reproduction
made by the establishments concerned for a purpose different from the ones mentioned above,
as long as these acts do not confer any economic or commercial advantage.

26. The European Parliament had also suggested, and the Commission had accepted,

that
Article 5(2)(c) provide an open list of the categories of establishments which could qualify as
beneficiaries of the exception concerned. The Council, however, opted for an exhaustive list.

27. The provision of Article 5(2)(d) had been added to the list of exceptions in the Commission’s
amended proposal following a suggestion from the European Parliament (amendment 39). The
Council has replaced ‘fixations’ by ‘recording’ and has added a second clause to this
subparagraph in order to align the wording with Article 11bis of the Berne Convention. The
Council also clarified the notion ‘by means of their own facilities’ in the new recital 41 in order
to provide Member States with sufficient flexibility to adapt their law to market changes.

28. The exception contained in Article 5(2)(e) has been added by the Council in order to allow
persons resident in certain non-commercial social institutions for health or other equally
compelling reasons to watch and/or listen to their favourite programmes even where the latter
are broadcast at a time which is not compatible with the smooth functioning of the institutions
concerned.

Paragraph 3

29.

In its amendments 43 and 44, the European Parliament had suggested that the terms ‘and if
possible the author’s name’ complete the obligation of source acknowledgement in the
exceptions of Article 5(3)(c) and (d). The Commission took these suggestions on board in its
amended proposal. The Council, in order to harmonise the wording used in various clauses
when it comes to source acknowledgement, has decided to use the terms ‘whenever possible,
the source, including the author’s name’ in Article 5(3)(a), (c), (d) and (f).

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30. With its amendment 41, the European Parliament had suggested making the exception of
Article 95(3)(a) conditional on fair compensation. The Commission had taken on board this
suggestion. The Council, however, considered that this was not necessary, taking into account
the non-commercial purpose of the activities concerned, and the possibility open to Member
States of imposing such a condition (see recital 36).

31. As regards Article 5(3)(b), the Council has taken on board practically unchanged the wording
of the Commission’s amended proposal, which was based on Parliament’s amendment 42.

32.

In the Commission’s amended proposal (see also Parliament’s amendment 43), Article 5(3)(c)
had been inspired by the exception provided for in Article 10bis(2) of the Berne Convention.
The Council, however, decided to incorporate in this clause both of the exceptions provided
for in Article 10bis of the Berne Convention and to follow more closely the language used in
the latter.

33.

In Article 5(3)(d), the Council accepted practically unchanged the wording of the Commission’s
amended proposal, which had followed Parliament’s amendment 44.

34.

In Article 5(3)(e), the Council accepted the Commission’s amended proposal, which had
followed Parliament’s amendment 45.

35.

In the provisions (f) to (n) of Article 5(3), the Council has accepted taking on board a number
of additional, narrowly-defined exceptions to accommodate requests from Member States.

36. Furthermore, the Council has adopted the new provision of Article 5(3)(o), which allows
Member States to maintain exceptions of minor importance, which already exist under their
national law at the time the Directive enters into force, provided these exceptions relate to
analogue uses only and do not affect the free circulation of goods and services within the
Community. This provision, together with the additional exceptions in Article 5(3)(f) to (n),
constitutes a reasonable compromise between the positions of those who would have preferred
a completely open list of optional exceptions and those who would have preferred a much
shorter list of purely mandatory exceptions.

Paragraph 4

37.

In Article 5(4), the Council accepted unchanged the wording of the Commission’s amended
proposal, which was based on Parliament’s amendment 46.

Paragraph 5

38.

In Article 5(5), the Council preferred aligning the wording with that of Article 10 of the WCT
and Article 16 of the WPPT. The additional
issue concerning the relationship between
exceptions and technological measures, raised in this context by the European Parliament with
its amendment 47, has been addressed by the Council in the context of Article 6 (see points 43
and 44).

39. The Commission did not include in its amended proposal a provision corresponding to

Parliament amendment 48. The Council has followed the Commission in this respect.

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Article 6 (obligations as to technological measures)

40. The Council has followed the structure of Article 6 proposed in Parliament amendments 49 to

54 and taken on board by the Commission in its amended proposal.

41. With a view to simplifying the drafting, the Council deleted the terms ‘designed to protect any
copyright or... Directive 96/9/EC’ and ‘without authority’
in the first two paragraphs of
Article 6, on the grounds that these were covered by the definition of technological measures
provided in paragraph 3.

42.

In Article 6(2), the Council preferred to delineate more precisely the scope of the provision by
making exhaustive the list of the various activities against which Member States are bound to
provide adequate legal protection if the other conditions of this paragraph are met.

43.

In its amendment 47, the European Parliament had suggested that it be stipulated in Article 5(4)
(current Article 5(5)) that the legal protection of technological measures prevailed over the
exceptions listed in Article 5. The Commission had addressed this issue under Article 6(3) of
its amended proposal, providing that only technological measures preventing or inhibiting the
infringement of copyright were protected under Article 6. This meant that technological
measures designed to prevent or inhibit acts allowed by law (e.g. by virtue of an exception)
were not protectable under Article 6. In other words, under the Commission’s amended
proposal, the exceptions provided for in Article 5 prevailed over the legal protection of
technological measures provided for in Article 6.

The Council has taken a different approach, which it considers strikes a reasonable balance
between the interests of rightholders and those of beneficiaries of exceptions. It has adopted in
Article 6(3) first sentence of its Common Position a definition of the protectable technological
measures which is broader than the one provided for in the Commission’s amended proposal
or the one set out in Parliament’s amendment 54. The terms ‘... designed to prevent or restrict
acts, in respect of works or other subject matter, which are not authorised by the rightholder
of any copyright ...’ in the Council’s definition make it clear that Article 6(1) protects against
circumvention of all technological measures designed to prevent or restrict acts not authorised
by the rightholder, regardless of whether the person performing the circumvention is a
beneficiary of one of the exceptions provided for in Article 5.

44. On the other hand, the Council has provided safeguards for the protection of the legitimate
interests of beneficiaries of exceptions by adding a new paragraph 4 to Article 6, accompanied
by new explanatory recitals 51 and 52. In Article 6(4), the Council:

— lays down an obligation on Member States, in the absence of voluntary measures taken
by rightholders, to take appropriate measures to ensure that rightholders make available
to beneficiaries of the exceptions/limitations listed in subparagraph I the means of
benefiting from these exceptions or limitations,

— provides Member States with the option, in the absence of voluntary measures taken by
rightholders, of taking appropriate measures under certain conditions to ensure that
rightholders make available to users the means of benefiting from the exception of private
copying (subparagraph 2),

— extends the legal protection provided for in Article 6(1) to technological measures designed
to ensure the availability of the means of benefiting from the exceptions/limitations
(subparagraph 3),

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— provides that agreed contractual terms for on-demand supply of works or other subject

matter will prevail over the provisions of subparagraphs 1 and 2 of Article 6(4),

— extends the application of this paragraph to technological measures applied in the context
of two of the existing Community Directives in the field of copyright and/or related rights.

45.

In Article 6(3) second sentence, the Council deleted the term ‘access to’ considering that
questions relating to access to works or other subject matter fell outside the field of copyright.
The Council also adopted a number of technical changes to the wording of this paragraph with
a view to simplifying it further.

Article 7 (obligations concerning rights-management information)

46.

In Article 7(1), the Council has brought the wording closer to that of Article 12(1) of the WCT
and Article 19(1) of the WPPT. Furthermore, the Council has split recital 33 of the Commission’s
amended proposal in two (see recitals 54 and 55), adding at the end of recital 54 a sentence on
the use by rightholders of markings indicating their authorisation for the putting of the works
or other subject matter concerned on the network.

Article 8 (sanctions and remedies)

47.

In Article 8(1), the Council retained the term ‘dissuasive’, which is the term normally used in
Community legislation in relation to sanctions and remedies, but deleted the words ‘act as a
deterrent to further infringement’, considering that the latter were redundant.

48.

In Article 8(2), the Council has added the obligation of Member States to provide for the
possibility of seising the illegal devices, products or components referred to in Article 6(2). The
Council has added similar language in recital 57.

49. The Council also added a new paragraph 3 to Article 8, which calls on Member States to
provide for the possibility of rightholders to apply for an injunction against intermediaries
carrying third parties’ infringements, even where the relevant intermediaries’ acts fall under the
exception provided for in Article 5(1). This new paragraph is accompanied by new recital 58.

Article 9 (continued application of other legal provisions)

50. The European Parliament had suggested by its amendment 11 a new recital 13a to the effect of
excluding the application of the present Directive to designs. In its amended proposal, the
Commission had taken on board this suggestion, albeit with a slightly amended wording. For
the sake of legal certainty, the Council preferred inserting a broader ‘without prejudice’ clause
in the main body of the Directive under the new Article 9, which also covers legal provisions
in other areas.

Article 10 (application over time)

51.

In Article 10, the Council preferred to merge part of paragraph 3 of Article 9 of
the
Commission’s amended proposal with paragraph 2 and to delete the rest of paragraph 3, as
well as the whole of paragraph 4, as it was felt that issues relating to the interpretation of
contracts should rather be left to national law.

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Article 11 (technical adaptations)

52.

In Article 11(1)(b), the Council aligned the wording of Article 10(3) of Directive 92/100/EEC
with the new wording of Article 5(5) of the present Directive.

53.

In Article 11(2), the Council modified Article 3(2) of Directive 93/98/EEC by adding:

— to the first subparagraph of that Article a second sentence, aimed at aligning this provision

with Article 17 of the WPPT,

— a second subparagraph, which excludes this modification resulting in the revival of
protection of phonograms which had fallen into the public domain under the present text
of Article 3(2) of Directive 93/98/EEC before this modification took effect.

Article 12 (final provisions)

54. The Council moved the provisions dealing with implementation issues (Article 11(1) of the

Commission’s amended proposal) to a new separate Article (see Article 13).

55.

In Article 12(1), the Council inserted additional language in the review clause with a view to
rendering it more precise and targeted. Thus, the Council has agreed that particular attention
should be given to issues such as developments in the digital market or the delicate balance of
interests between rightholders and beneficiaries of exceptions during the appraisal of the
application of Articles 5, 6 and 8.

56.

In Article 12(2), the Council accepted the wording of Article 11(3) of the Commission’s
amended proposal, which had been suggested by the European Parliament in amendment 57.

57.

In Article 12(3) and (4), the Council followed the substance of Article 11(4a) and (4b) of the
Commission’s amended proposal, while bringing several drafting changes to the text.

Article 13 (implementation)

58.

In Article 13(1), the Council deleted the terms ‘by 30 June 2000’ which had become obsolete
and decided that the length of the implementation period should be two years from the entry
into force of the Directive.

Article 14 (entry into force)

59.

In Article 14, the Council stipulated, in accordance with current practice, that the date of entry
into force of the Directive will be the day of its publication in the Official Journal.

Article 15 (addressees)

60. Article 15 was accepted as in the Commission’s amended proposal.

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IV. CONCLUSIONS

61.

In its Common Position, the Council has taken over a considerable number of amendments
proposed by the European Parliament. Throughout the Common Position, the Council has
sought to strike a reasonable and workable balance between the interests of rightholders and
those of other parties concerned. In this context, the Commission is able to accept the Council’s
Common Position.