Green Paper - Copyright in the Knowledge Economy
Date: 2008-07-16
Institutions: European Commission
Subjects: applied sciences, copyright, digital technology, dissemination of information, knowledge economy, research, teaching

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 16.7.2008 
COM(2008) 466 final 

GREEN PAPER 

Copyright in the Knowledge Economy 

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GREEN PAPER 

Copyright in the Knowledge Economy 

TABLE OF CONTENTS 

1. 

1.1. 

1.2. 

2. 

3. 

Introduction .................................................................................................................. 3 

The purpose of the Green Paper................................................................................... 3 

The scope of the Green Paper ...................................................................................... 3 

General Issues .............................................................................................................. 4 

Exceptions: Specific Issues .......................................................................................... 6 

3.1. 

Exceptions for libraries and archives ........................................................................... 7 

3.1.1.  Digitisation (preservation) ........................................................................................... 7 

3.1.2.  The making available of digitised works ..................................................................... 9 

3.1.3.  Orphan works ............................................................................................................. 10 

3.2. 

3.3. 

3.4. 

4. 

The exception for the benefit of people with a disability........................................... 13 

Dissemination of works for teaching and research purposes ..................................... 16 

User-created content................................................................................................... 19 

Call For Comments .................................................................................................... 20 

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1. 

INTRODUCTION  

1.1. 

The purpose of the Green Paper 

The purpose of the Green Paper is to foster a debate on how knowledge for research, science 
and education can best be disseminated in the online environment. The Green Paper aims to 
set out a number of issues connected with the role of copyright in the "knowledge economy"1 
and intends to launch a consultation on these issues.  

The Green Paper is essentially in two parts. The first part deals with general issues regarding 
exceptions to exclusive rights introduced in the main piece of European copyright legislation - 
Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights 
in the information  society ("the Directive")2. The other piece of copyright legislation that is 
relevant for the knowledge economy, Directive 96/9/EC on the legal protection of databases3, 
has been analysed in a separate report4. Nevertheless, some aspects of this directive, such as 
exceptions and limitations, will be addressed in this report as well.  

The second part deals with specific issues related to the exceptions and limitations which are 
most relevant for the dissemination of knowledge and whether these exceptions should evolve 
in the era of digital dissemination.  

The  Green  Paper  will  address  all  issues  in  a  balanced  manner  taking  into  account  the 
perspective  of  publishers, 
libraries,  educational  establishments,  museums,  archives, 
researchers, people with a disability and the public at large.  

1.2. 

The scope of the Green Paper 

In  its  review  of  the  Single  Market5  the  Commission  highlighted  the  need  to  promote  free 
movement  of  knowledge  and  innovation  as  the  "Fifth  Freedom"  in  the  single  market.  The 
Green Paper will focus on how research, science and educational materials are disseminated 
to the public and whether knowledge is freely circulating in the internal market. But the Green 
Paper  is  not  limited  to  scientific  and  educational  material.  Material  not  falling  within  these 

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5 

The  term  "knowledge  economy"  is  commonly  used  to  describe  economic  activity  that  relies  not  on 
"natural"  resources  (like  land  or  minerals)  but  on  intellectual  resources  such  as  know-how  and 
expertise. A key concept of the knowledge economy is that knowledge and education (also referred to 
as "human capital") can be treated as a commercial asset or as educational and intellectual products and 
services that can be exported for a high value return. It is obvious that the knowledge economy is rather 
more important for those regions whose natural resources are scarce.  
Directive  2001/29/EC  of  the  European  Parliament  and  of  the  Council  of  22  May  2001  on  the 
harmonisation of certain aspects of copyright and related rights in the information society, OJ L 167, 
22.6.2001, p. 10-19. In 2007 the Commission published a report assessing how Articles 5, 6 and 8 of 
the  Directive  have  been  transposed  by  the  Member  States  and  applied  by  the  national  courts,  see  the 
Report  on  the  application  of  the  Directive  on  the  harmonisation  of  certain  aspects  of  copyright  and 
related 
at 
http://ec.europa.eu/internal_market/copyright/copyright-infso/copyright-infso_en.htm 
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. 20-28. 
http://ec.europa.eu/internal_market/copyright/prot-databases/prot-databases_en.htm 
COM 2007 724 final of 20.11.2007 - A single market for 21st century Europe 

(2001/29/EC), 

information 

available 

society 

rights 

the 

in 

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parameters but which has value in enhancing knowledge is also within the scope of this Green 
Paper.  

The  "public"  addressed  in  this  Green  Paper  comprises  scientists,  researchers,  students  and 
also  disabled  people  or  the  general  public  who  want  to  advance  their  knowledge  and 
educational  levels  by  using  the  Internet.  Wider  dissemination  of  knowledge  contributes  to 
more  inclusive  and  cohesive  societies,  fostering  equality  of  opportunities  in  line  with  the 
priorities of the forthcoming renewed Social Agenda. 

A high level of copyright protection is crucial for intellectual creation. Copyright ensures the 
maintenance and development of creativity in the interests of authors, producers, consumers 
and  the  public  at  large.  A  rigorous  and  effective  system  for  the  protection  of  copyright  and 
related rights is  necessary  to  provide  authors and producers with  a  reward for  their creative 
efforts and to encourage producers and publishers to invest in creative works (see recitals 10 
and 11 of the Directive). The publishing sector makes an important contribution to European 
economy6.  Copyright  is  also  a  policy  in  line  with  the  imperative  to  foster  progress  and 
innovation.  The  Commission  solicits  the  views  of  researchers  on  new  ways  of  delivering 
digital  content.  These  new  modes  of  delivery  should  allow  consumers  and  researchers  to 
access protected content in full respect of copyright. 

Existing  copyright  laws  have  traditionally  attempted  to  strike  a  balance  between  ensuring  a 
reward for past creation and investment and the future dissemination of knowledge products 
by introducing a list of exceptions and limitations to allow for certain, specific activities that 
pertain to scientific research, the activities of libraries and to disabled people. In this respect, 
the Directive has introduced an exhaustive list of exceptions and limitations. These exceptions 
are  not  mandatory  for  Member  States  however,  and  even  if  exceptions  are  adopted  at  the 
national  level,  Member  States  have  often  formulated  exceptions  narrower  than  those 
permitted in the Directive.  

2. 

GENERAL ISSUES 

The  Directive  has  harmonised  the  right  of  reproduction,  the  right  of  communication  to  the 
public,  the  right  of  making  available  to  the  public  and  the  distribution  right.  The  basic 
principle underlying the harmonisation effort was to provide the rightholders with a high level 
of  protection;  hence  the  scope  of  exclusive  rights  was  very  broadly  defined.  Some 
stakeholders question whether the introduction of exclusive rights translates into a fair share 
of income for all the categories of rights holders. Authors (such as composers, film directors, 
and journalists) and, in particular, performers argue that they have not earned any significant 
revenue  from  the  exercise  of  the  new  "making  available"  right  in  relation  to  the  online 
exploitation of their works.  

Apart from adapting the exclusive rights to the online environment, the Directive introduced 
an  exhaustive  list  of  exceptions  to  copyright  protection,  although  there  was  no  international 
obligation to do so. The primary reason for having such a list of exceptions appears to be to 
limit Member States' ability to introduce new exceptions or extend the scope of the existing 

6 

According  to  a  survey  conducted  by  the  Federation  of  European  Publishers,  annual  sales  revenue  of 
book  publishing  amounted  to  22.268  million  euro  in  2004.  More  than  620.000  new  books  or  new 
editions  were  published  in  2004  and  approximately  123,000  people  are  employed  full  time  in  book 
publishing. See http://www.fep-fee.be/ 

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ones  beyond  what  is  allowed  under  the  Directive.  Gradually,  in  the  legislative  process, 
Member  States  introduced  the  current  list  of  one  mandatory  exception  and  20  optional 
exceptions. 

The  conditions  of  application  of  the  exceptions  are  drafted  in  rather  general  language. 
Arguably,  the  approach  chosen  by  the  drafters  has  left  Member  States  a  great  deal  of 
flexibility  in  implementing  the  exceptions  contained  in  the  Directive.  Apart  from  the 
exception on transient copying, national legislation can be more restrictive than the Directive 
as to the scope of exceptions. The list of exceptions as contained in the Directive has achieved 
a  certain  degree  of  harmonisation:  creating  an  exhaustive  list  of  exceptions  does  not  allow 
Member States to maintain or introduce exceptions which are not listed. 

In  addition,  Article  5(5)  of  the  Directive  provides  that  the  exceptions  and  limitations 
permitted  by  the  Directive  are  to  be  applied  in  certain  special  cases,  which  do  not  conflict 
with  the  normal  exploitation  of  the  work  or  other  subject  matter  and  do  not  unreasonably 
prejudice  the  legitimate  interests  of  the  right  holder.  This  provision  is  known  as  the  "three- 
step test". 

The formulation of Article 5(5) reflects the Community's international obligations in the area 
of copyright and related rights. The three-step test is set out in similar terms in Article 9(2) of 
the Berne Convention7 and, most importantly, Article 13 of the Agreement on Trade-Related 
Aspects of Intellectual Property Rights ("the TRIPS Agreement")8, to which Community is a 
party9. The three-step test is therefore part of the international copyright framework which the 
Community and its Member States are bound to respect. It has become a benchmark for all 
copyright limitations10.  

Questions: 

(1) 

(2) 

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Should  there  be  encouragement  or  guidelines  for  contractual  arrangements 
between right holders and users for the implementation of copyright exceptions 

Should  there  be  encouragement,  guidelines  or  model  licenses  for  contractual 
arrangements  between  right  holders  and  users  on  other  aspects  not  covered  by 
copyright exceptions?  

Although  the  Community  is  not  a  party  to  the  Berne  Convention  (and  indeed  could  not  be,  since 
membership of the Berne Union is confined to States), it is required to comply with the Convention by 
virtue of Article 9 of the TRIPS Agreement. 
That Agreement is found in Annex 1C to the Agreement establishing the World Trade Organisation. 
Article  13  of  the  TRIPS  Agreement,  entitled  "Limitations  and  Exceptions",  is  the  general  exception 
clause applicable to exclusive rights of the holders of copyright. Article 13 of the TRIPS Agreement has 
been interpreted by a ruling of the Dispute Settlement Body of the WTO concerning Section 110(5) of 
the  US  Copyright  Act.  The  Panel  held  that  the  scope  of  any  permissible  exception  under  Article  13 
should  be  narrow  and  should  be  limited  to  de  minimis  use.  The  three  conditions,  namely  (1)  certain 
special  cases;  (2)  no  conflict  with  the  normal  exploitation  of  the  work;  and  (3)  no  unreasonable 
prejudice of the legitimate interests of the right holder are cumulative. 
See  the  ruling of  the Dispute  Settlement  Body of  the WTO  United States  – Section 110(5)  of  the US 
Copyright Act, WT/DS160/R, of 15 June 2000. 

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(3) 

Is an approach based on a list of non-mandatory exceptions adequate in the light 
of  evolving  Internet  technologies  and  the  prevalent  economic  and  social 
expectations? 

(4) 

Should certain categories of exceptions be made mandatory to ensure more legal 
certainty and better protection of beneficiaries of exceptions? 

(5) 

If so, which ones?  

3. 

EXCEPTIONS: SPECIFIC ISSUES 

The  Green  Paper  focuses  on  the  exceptions  to  copyright  which  are  most  relevant  for  the 
dissemination of knowledge, namely: 

–  The exception for the benefit of libraries and archives;  

–  The exception allowing dissemination of works for teaching and research purposes;  

–  The exception for the benefit of people with a disability; 

–  A possible exception for user-created content. 

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3.1. 

Exceptions for libraries and archives 

As  regards  the  libraries  and  other  similar  establishments,  two  core  issues  have  arisen:  the 
production of digital copies of materials held in the libraries' collections and the electronic 
delivery of these copies to users. Digitisation of books, audiovisual material and other content 
can  serve  a  twofold  purpose  –  preservation  of  content  for  future  generations  and  making  it 
available for end users online.  

Under  the  current  legal  framework,  libraries  or  archives  do  not  enjoy  a  blanket  exception 
from  the  right  of  reproduction.  Reproductions  are  only  allowed  in  specific  cases,  which 
arguably  would  cover  certain  acts  necessary  for  the  preservation  of  works  contained  in  the 
libraries'  catalogues.  On  the  other  hand,  the  library  exception  and  national  rules 
implementing  it  are  not  always  clear  on  issues  such  as  "format-shifting"  or  the  number  of 
copies that can be made under this exception. Detailed regulations in this respect result from 
legislative  policy  decisions  undertaken  at  the  national  level.  Some  Member  States  have 
restrictive rules with respect to reproductions that can be made by libraries.  

In  recent  years  libraries  and  other  public  interest  establishments  have  become  increasingly 
interested  not  only  in  preserving  (digitising)  works  but  also  in  making  their  collections 
accessible  online.  If  that  were  to  take  place,  libraries  argue,  researchers  would  no  longer 
have  to  go  to  the  premises  of  libraries  or  archives  but  would  easily  be  able  to  find  and 
retrieve the required information on the Internet. Also, publishers state that they are digitising 
their  own  catalogues  with  a  view  to  setting  up  interactive  online  databases  where  this 
material can be easily retrieved from the user's desktop11. These services require payment of a 
subscription fee.  

Under current copyright legislation, publicly accessible libraries, educational establishments, 
archives and museums benefit from two exceptions in the Copyright Directive:  

–  an exception to the reproduction right for specific acts of reproduction for non-commercial 

purposes (Art. 5(2)(c) of the Directive) and  

–  a narrowly formulated exception to the communication to the public right and the making 
available right for the purpose of research or private study by means of dedicated terminals 
located on the premises of such establishments (Art. 5(3)(n) of the Directive). 

3.1.1.  Digitisation (preservation) 

The exception from the reproduction right is limited to "specific acts of reproduction". Article 
5(2)(c) thus stands out as the only exception explicitly referring to the first limb of the "three-
step  test",  as  codified  in  Article  5(5)  of  the  Directive,  which  requires  that  exceptions  be 

11 

For example, Elsevier, a publisher of 2200 journals has set up ScienceDirect, a service through which 
10 million scientists and researchers are granted desktop access to a service offering 8.7 million journal 
articles. In 2004, Elsevier launched the "Scopus" database which covers 16,000 journals from all key 
publishers in the areas of scientific, technological and medical publishing. They also provide an online 
service  called  "MD  Consult"  which  targets  health  care  professionals  by  bringing  together  the  leading 
medical resources.  

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confined to "certain special cases". Accordingly, and as recital 40 of the Directive points out, 
this  exception  should  be  limited  to  certain  special  cases  and  not  cover  uses  made  in  the 
context of online deliveries of protected works or phonograms. 

The careful wording of this exception would thus imply that it does not provide libraries or 
other beneficiaries with a blanket exception from the right of reproduction. Reproductions are 
only  allowed  in  specific  cases,  which  arguably  would  cover  certain  acts  necessary  for  the 
preservation of works contained in the libraries' catalogues. On the other hand, this exception 
does not contain clear rules on issues such as "format-shifting" or the number of copies that 
can be made under this exception. Detailed regulations in this respect result from legislative 
policy decisions undertaken at the national level.  

Some  Member  States  have  restrictive  rules  as  to  the  reproductions  that  can  be  made  by 
libraries.  The  UK  government  is  currently  conducting  a  consultation12  with  a  view  to 
amending  Section  42  of  the  Copyright,  Designs  and  Patents  Act  (CDPA)  which  allows 
libraries or archives to make a single copy of a literary, dramatic or musical work held in their 
permanent  collection  for  the  purpose  of  preservation  and  replacement.  The  government 
proposes  to  expand  the  exception  so  as  to  allow  for  copying  and  format  shifting  of  sound 
recordings, films and broadcasts and to allow for more than a single copy where successive 
copying may be required to preserve permanent collections in an accessible format. 

As regards preservation of works, it is libraries, archives and museums that preserve works in 
a durable format. But to an increasing extent, private entities, such as search engines, are also 
involved  in  large  scale  digitisation  efforts.  As  an  example,  the  Google  Book  Search  project 
was  launched  in  2005  with  the  aim  of  making  the  content  of  books  searchable  on  the 
Internet13. Google concludes agreements with European libraries which cover digitisation of 
public domain works14. Publishers are also experimenting with free online access to parts or 
even  full  texts  of  books  and  are  developing  tools  enabling  users  to  browse  the  content  of 
books15.  

It  must  be  stressed  that  activities  of  private  entities,  such  as  search  engines,  cannot  benefit 
from  the  exception  contained  in  Article  5(2)(c)  which  is  limited  to  publicly  accessible 
libraries, educational establishments museums or archives and only covers acts which are not 
for  direct  or  indirect  economic  or  commercial  advantage.  Digitisation  involves  the 
reproduction right16 because changing the format of a work from analogue to digital requires a 

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by 

provided 

information 

http://www.ipo.gov.uk/about/about-consult/about-formal/about-formal-current/consult-
copyrightexceptions.htm 
http://books.google.com 
the 
See 
http://www.bodley.ox.ac.uk/librarian/CNIGoogle/CNIGoogle.htm 
For  example,  HarperCollins  has  recently  launched  a  number  of  such  initiatives,  namely:  the  "full 
access"  programme  (full  texts  of  selected  books  are  available  for  free  for  a  limited  time),  a  “Sneak 
Peek” programme (readers are able to view 20% of the content of many books two weeks before their 
publication) and the “Browse Inside” programme (readers can browse 20% of the content of books after 
their publication). These are available at www.HarperCollins.com.  
See  the  agreed  statement  concerning  Article  1(4)  of  the  WCT:  "The  reproduction  right,  as  set  out  in 
Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply in the digital 
environment,  in  particular  to  the  use  of  works  in  digital  form.  It  is  understood  that  the  storage  of  a 
protected work in digital form in an electronic medium constitutes a reproduction within the meaning of 
Article 9 of the Berne Convention".  

Library: 

Oxford 

the 

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reproduction of the work. For example, a book has to be scanned before it can be digitised. If 
this  scanning  is  undertaken  by  entities  and  in  circumstances  not  covered  in  Article  5(2)(c), 
rightholders  have  to  give  prior  permission  for  such  a  reproduction  to  take  place.  Similarly, 
making a digitised work available online requires the prior consent of the rightholder(s). 

The scanning of works held in libraries for the purpose of making their content searchable on 
the  Internet  is  commonly  distinguished  from  linking,  deep  linking,  interlinking  or  indexing 
which are activities that relate to works that are already available online. For example, with 
respect to hyperlinks (an electronic connection to a file placed on the Internet), the German 
Supreme  Court  held  that  works  are  not  reproduced  by  linking  or  deep-linking  (a  link  that 
leads  the  Internet  user  to  another  webpage  within  a  website)17.  In  the  American  case  of 
Perfect  10  v.  Google  and  Amazon18,  the  court  held  that  in-linking  to  the  full-size  image  on 
another website, which does not require a reproduction of the original images, doesn't infringe 
the  reproduction  right.  While  some  courts  deem  thumbnails,  i.e.  reproductions  of  small 
images to facilitate links to other websites on the Internet, to infringe the exclusive right of 
reproduction19, the Erfurt Regional Court20
 held that using thumbnails to establish links would 
not  give  rise  to  copyright  liability  if  the  work  had  been  posted  on  the  Internet  by  the 
rightholder or with his consent21. 

It is often argued however that the Google Book Search project goes further than the search 
engine at issue in the German Supreme Court's Paperboy22 or the Perfect 10 cases. The search 
engine  in  the  Paperboy  case  established  links  to  websites  which  contained  protected  works 
that were made available online with the rightholders consent. The Paperboy service relied on 
works made available by others and would no longer be able to create a link to a work that 
had been withdrawn by the rightholder. The service also did not entail the caching of the work 
as the link would no longer function once the original was withdrawn.  

3.1.2.  The making available of digitised works  

Under  current  copyright  legislation,  publicly  accessible  libraries,  educational  establishments 
or  museums  and  archives  benefit  from  a  narrowly  formulated  exception  to  the  right  of 
communication  to  the  public  or  to  making  available  to  the  public  works  or  other  subject 
matter,  if  this  is  done  for  the  purpose  of  research  or  private  study  by  means  of  dedicated 
terminals located on the premises of such establishments (Art. 5(3)(n) of the Directive).  

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BGH,  17th  July  2003,  case  I  WR  259/00,  Paperboy  (case  decided  before  the  implementation  of  the 
Directive). 
Case 06-55405, 9th Cir., May 16, 2007. 
Bielefeld  Regional  Court,  8  November  2005,  JurPC  Web-Dok.  106/2006  and  Regional  Court  of 
Hamburg, 5 September 2003, JurPC Web-Dok 146/2004. 
Erfurt Regional Court, 15 March 2007, 3 O 1108/05 - Bildersuche Suchmaschine Haftung. 
Following a similar line of argument, search engines are not asking for prior permission from copyright 
owners to index content of web pages. Search engines argue that, if a content owner does not want the 
content of the web page to be indexed, he can encode the message in a text file called "robots.txt" in 
order  to  opt-out  and  block  the  search  engine  from  copying  content.  If  no  such  technology  is  applied, 
they believe that this is tantamount to an implied licence for a search engine to copy and index.  
BGH, 17th July 2003, case I WR 259/00, Paperboy. 

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This exception would arguably not cover the electronic delivery of documents to end users at 
a distance. As regards electronic delivery of materials to end users, recital 40 of the Directive 
states that the exception for libraries and archives should not cover "uses made in the context 
of online delivery of protected works or other subject matter".  

3.1.3.  Orphan works 

An  issue  which  came  to  the  fore  in  large  scale  digitisation  projects  is  the  so-called  orphan 
works phenomenon. Orphan works are works which are still in copyright but whose owners 
cannot be identified or located. There is a significant demand for the dissemination of works 
or sound recordings of an educational, historical or cultural value at a relatively low cost to a 
wide audience online. It is often claimed that such projects are held up due to the lack of a 
satisfactory solution to the orphan works issue. Protected works can become orphaned if data 
on  the  author  and/or  other  relevant  rightholder(s)  (such  as  publishers  or  film  producers)  is 
missing  or  outdated.  This  is  often  the  case  with  works  which  are  no  longer  exploited 
commercially.  

Apart from books, thousands of orphan works such as photographs and audiovisual works are 
currently  held  in  libraries,  museums  or  archives.  The  lack  of  data  on  their  ownership  can 
constitute  an  obstacle  to  making  such  works  available  online  to  the  public  and  can  impede 
digital restoration efforts. This is particularly the case with orphan films.  

The issue of orphan works is mainly a rights clearance issue i.e. how to ensure that users who 
make orphan works available are not liable for copyright infringement when the rightholder 
reappears and asserts his rights over the work. Apart from liability concerns, the cost and time 
needed  to  locate  or  identify  the  rightholders,  especially  in  the  case  of  works  of  multiple 
authorship, can prove to be too great to justify the effort. This appears to be especially true for 
rights  in  sound  recordings  and  audiovisual  works  that  are  currently  kept  in  broadcasters 
archives. Copyright clearance of orphan works can constitute an obstacle to the dissemination 
of valuable content and can be seen as hampering follow-on creativity. However, the extent to 
which  orphan  works  actually  impede  uses  of  works  is  not  clear.  There  is  a  scarcity  of  the 
necessary  economic  data  which  would  allow  the  problem  to  be  quantified  on  the  pan-
European level.  

The  orphan  works  issue  is  currently  being  considered  both  at  the  national23  and  at  the  EU 
level.  The  US24  and  Canada25  have  also  taken  initiatives  regarding  orphan  works.  While 
approaches  to  this  issue  differ,  the  proposed  solutions  are  mostly  based  on  a  common 
principle;  a  user  has  to  perform  a  reasonable  search  in  order  to  try  to  identify  or  locate  the 
rightholder(s).  

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E.g.  in  the  UK  "Gowers  Review  of  Intellectual  Property",  there  is  a  recommendation  that  the 
Commission  amends  Directive  2001/29/EC  and  introduces  an  exception  for  orphan  works.  Denmark 
and  Hungary  have  developed  solutions  to  orphan  works  (the  Danish  solution  is  based  on  extended 
collective licences and the Hungarian one on licences issued by a public body). 
The US Copyright Office published a report on orphan works in January 2006. Two bills were tabled on 
24 April 2008 at the Senate and the House of Representatives (the "Shawn Bentley Orphan Works Act" 
and the "Orphan Works Act of 2008", respectively). Both bills are proposals to amend title 17 of the US 
Code by adding a section on "limitations on remedies in cases involving orphan works".  
The Canadian solution is based on non-exclusive licences issued by the Copyright Board of Canada.  

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The  Commission  adopted  a  recommendation26  in  2006  encouraging  the  Member  States  to 
create mechanisms to facilitate the use of orphan works and to promote the availability of lists 
of  known  orphan  works.  A  High  Level  Expert  Group  on  Digital  Libraries  was  established 
bringing  together  stakeholders  concerned  by  orphan  works.  The  Group  adopted  a  "Final 
Report on Digital Preservation, Orphan Works and Out-of-Print Works" and a "Memorandum 
of Understanding on orphan works" was signed by representatives of libraries, archives and 
rightholders27.  The  memorandum  contains  a  set  of  guidelines  on  diligent  search  for 
rightholders and general principles concerning databases of orphan works and rights clearance 
mechanisms. Detailed solutions are to be developed at the national level. 

The majority of the Member States have not yet developed a regulatory approach with respect 
to the orphan works issue. The potential cross-border nature of this issue seems to require a 
harmonised approach.  

26 

27 

Commission Recommendation of 24 August 2006 on the digitisation and online accessibility of cultural 
content and digital preservation, 2006/585/EC, L 236/28.  
http://ec.europa.eu/information_society/activities/digital_libraries/hleg/hleg_meetings/index_en.htm 

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Questions: 

(6) 

(7) 

Should  the  exception  for  libraries  and  archives  remain  unchanged  because 
publishers themselves will develop online access to their catalogues?  

In  order  to  increase  access  to  works,  should  publicly  accessible  libraries, 
educational  establishments,  museums  and  archives  enter  into  licensing  schemes 
with  the  publishers?  Are  there  examples  of  successful  licensing  schemes  for 
online access to library collections? 

(8) 

Should  the  scope  of  the  exception  for  publicly  accessible  libraries,  educational 
establishments, museums and archives be clarified with respect to:  

(a) 

Format shifting;  

(b) 

The number of copies that can be made under the exception;  

(c) 

The scanning of entire collections held by libraries; 

(9) 

Should the law be clarified with respect to whether the scanning of works held in 
libraries for the purpose of making their content searchable on the Internet goes 
beyond the scope of current exceptions to copyright? 

(10) 

Is a further Community statutory instrument required to deal with the problem 
of  orphan  works,  which  goes  beyond  the  Commission  Recommendation 
2006/585/EC of 24 August 2006? 

(11) 

If  so,  should  this  be  done  by  amending  the  2001  Directive  on  Copyright  in  the 
information society or through a stand-alone instrument? 

(12)  How  should  the  cross-border  aspects  of  the  orphan  works  issue  be  tackled  to 
ensure EU-wide recognition of the solutions adopted in different Member States?  

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12 

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3.2. 

The exception for the benefit of people with a disability 

People with a disability should have an opportunity to benefit from the knowledge economy. 
To this end they not only need physical access to premises of educational establishments or 
libraries but also the possibility of accessing works in formats that are adapted to their needs 
(e.g. Braille, large print, audio-books and accessible electronic books). 

The Directive contains an exception to the reproduction right and the communication to the 
public right for the benefit of people with a disability. All Member States have implemented 
this exception, however, in some national laws it is restricted to certain categories of disabled 
persons (e.g,  the  exception  only covers  the  visually impaired).  Some Member  States require 
payment of compensation to the rightholders for the use of works under the exception. 

A common concern for disabled people is the costs, in terms of time and money, involved in 
making  accessible  copies  of  books  which  are  only  available  in  paper  format  or  in  a  digital 
format  which  is  not  easily  convertible  to  Braille.  Rightholders  believe  that  appropriate 
protection against piracy and misuse needs to be guaranteed, especially when it concerns the 
delivery of digital formats, which can be easily  reproduced  and instantly disseminated over 
the Internet. 

Article  5(3)(b)  of  the  Directive  allows  for  non-commercial  uses  directly  related  to  the 
disability and to the extent required by the disability. Recital 43 of the Directive stresses that 
Member States should 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  and  to  pay 
particular  attention  to  accessible  formats.  The  exception  for  the  benefit  of  people  with  a 
disability is among the public interest exceptions where the Member States are encouraged to 
take  appropriate  measures,  in  the  absence  of  voluntary  measures  taken  by  rightholders,  to 
ensure that beneficiaries have access to works protected by technological measures.  

All  Member  States  have  implemented  this  exception,  however,  in  some  national  laws  it  is 
restricted  to  certain  categories  of  disabled  persons  (e.g.  in  the  UK28  and  Bulgaria  it  only 
applies to the visually impaired, in Latvia29, Lithuania and Greece30 it applies to visually and 
hearing  impaired  persons).  In  Lithuania,  the  exception  is  further  limited  to  educational  and 
scientific  research  purposes31.  In  Greece,  the  exception  only  covers  reproductions  and  does 
not extend to communication of the works. 

According  to  recital  36  of  the  Directive,  Member  States  may  provide  for  fair  compensation 
when applying the optional provisions on exceptions. Some Member States, such as Germany, 
Austria and the Netherlands, require payment of compensation to the rightholders for the use 
of works under the exception. Given the cost of converting works to accessible formats and 
the limited resources available, the question arises as to whether beneficiaries of the exception 
should be required to pay compensation to the rightholders or whether they should be exempt 
from such an obligation.  

28 
29 
30 
31 

Sections 31A-31F of the Copyright (Visually Impaired Persons) Act 2002. 
Section 19 (1)(3) and section 22 of the 2004 Copyright Act. 
Article 28A of Law 2121/1993. 
Article 22 (1)(2) of the 2003 Copyright Act. 

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According  to  a  WIPO  study32,  a  common  concern  is  the  expense  and  time  needed  to  make 
accessible copies from books which are only available in paper format or in a digital format 
which is not easily convertible to Braille. The Directive does not require rightholders to make 
a work available in a particular format. The issue is how to supply relevant organisations with 
a non-protected digital copy for creating accessible formats in a way that addresses publishers' 
concerns about security and the protection of their copyright in the works.  

There  are  examples  of  successful  cooperation  between  publishers  and  organisations 
representing  the  visually  impaired.  In  Denmark,  e-books  or  audio-books  produced  by  the 
Danish Library for the Blind are equipped with a unique ID which allows control of the use 
and  of  the  work  and  the  tracing  of  possible  infringers.  In  France,  agreements  are  in  place 
between  a  not-for-profit  agency  BrailleNet  and  publishers  for  delivery  of  digital  copies  of 
works  which  are  stored  on  a  specialised  secure  server  accessible  only  by  certified 
organisations.  

Rightholders  believe  that  appropriate  protection  against  piracy  and  misuse  needs  to  be 
guaranteed,  especially  when  it  concerns  the  delivery  of  digital  formats,  which  can  be  easily 
reproduced and instantly disseminated over the Internet. A feasible approach appears to be a 
system of trusted intermediaries, such as specialised libraries or organisations representing the 
disabled  people,  which  can  negotiate  with  rightholders  and  enter  into  agreements.  Such 
agreements provide for different kinds of restrictions and assurances to the rightholders which 
are meant to prevent abuse. 

A related concern is that the exception for people with a disability is not specifically provided 
in  Directive  96/9/EC  on  the  legal  protection  of  databases33.  Article  6(2)  of  this  Directive 
provides for exceptions for teaching or scientific research, and private use reproductions, but 
has  no  exception  for  disabled  people.  This  raises  the  concern  that  the  exception  for  people 
with  a  disability  in  Article  5(3)(b)  of  Directive  2001/29  could  be  undermined  by  invoking 
database protection on the basis that a particular literary work is simultaneously protected as a 
database.  As  pointed  out  in  the  Commission  staff  working  paper  of  19  July  2004,  this 
situation might arise when the literary work, such as an encyclopaedia, is protected as a work 
and as a database simultaneously.  

Questions: 

(13)  Should people with a disability enter into licensing schemes with the publishers in 
order  to  increase  their  access  to  works?  If  so,  what  types  of  licensing  would  be 
most suitable? Are there already licensing schemes in place to increase access to 
works for the disabled people? 

(14)  Should  there  be  mandatory  provisions  that  works  are  made  available  to  people 

with a disability in a particular format?  

32 

33 

Study on Copyright Limitations and Exceptions for the Visually Impaired prepared by J. Sullivan for 
the WIPO Standing Committee on Copyright and Related Rights (2006), p. 71-72. 
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. 20-28. 

EN 

14 

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(15)  Should there be a clarification that the current exception benefiting people with a 
disability applies to disabilities other than visual and hearing disabilities?  

(16) 

If  so,  which  other  disabilities  should  be  included  as  relevant  for  online 
dissemination of knowledge?  

(17)  Should national laws clarify that beneficiaries of the exception for people with a 
disability should not be required to pay remuneration for using a work in order 
to convert it into an accessible format? 

(18)  Should  Directive  96/9/EC  on  the  legal  protection  of  databases  have  a  specific 
exception in favour of people with a disability that would apply to both original 
and sui generis databases? 

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3.3. 

Dissemination of works for teaching and research purposes 

Both  teachers  and  students  increasingly  rely  on  digital  technology  to  access  or  disseminate 
teaching  materials.  The  use  of  network-based  learning  accounts  at  present  for  a  significant 
part  of  regular  curricular  activities.  While  dissemination  of  study  materials  through  online 
networks can have a beneficial effect on the quality of European education and research, it 
may  also  carry  a  risk  of  copyright  infringement  where  the  digitization  and/or  making 
available of copies of research and study materials are covered by copyright.  

The public interest exception for teaching and research purposes was designed to reconcile 
the  legitimate  interests  of  the  rightholders  with  the  wider  goal  of  access  to  knowledge.  The 
Copyright  Directive  allows  Member  States  to  provide  for  exceptions  or  limitations  to  the 
rights  of  reproduction  and  communication  to  the  public  when  a  work  is  used  "for  the  sole 
purpose of illustration for teaching or scientific research, as long as the source, including the 
author's name, is indicated, unless this turns out to be impossible." This exception has often 
been implemented in a narrow sense and distance or Internet-based learning at home is not 
covered.  Also,  the  exception  often  only  covers  copying  excerpts  of  the  research  material 
rather than the entire work. Sometimes Member States have opted for a teaching exception, 
while having no exception for research.  

At the time of the adoption of the Directive, both traditional classroom instruction and modern 
e-learning  methods  were  taken  into  consideration.  Recital  42  thus  states  that  Article  5(3)(a) 
may also apply to distance education. However, this is not further reflected in the wording of 
Article  5(3)(a)  itself,  as  it  contains  neither  the  definition  of  the  concepts  of  'teaching', 
'scientific  research'  or  'illustration'  nor  any  further  clarification  as  to  the  scope  of  the 
exception. Recital 42 refers to the non-commercial nature of teaching and scientific research 
as  the  determining  criterion  for  the  application  of  the  exception,  irrespective  of  the 
organizational structure and the means of funding of the institution where these activities are 
undertaken. The Directive has thus given to the Member States a large amount of freedom in 
implementation,  allowing  them  to  determine  the  boundaries  of  permissible  use  under  the 
exception.  

The use of works for purposes of illustration for teaching and scientific research is dealt with 
differently by the Member States. In some countries, such as Denmark, Finland, Sweden and 
France  (until  January  2009),  the  use  of  works  for  purposes  of  illustration  for  teaching  and 
research is subject to the conclusion of extended collective agreements between the collecting 
societies  and  educational  establishments.  Despite  the  advantages  of  a  system  of  extended 
collective licensing (the institutions can negotiate the contracts which are best adapted to their 
needs),  this  form  of  licensing  presents  the  risk  that  no  agreement  or  a  rather  restrictive 
agreement will be reached, thus creating legal uncertainty for educational establishments34.  

34 

This  was  the  case  in  France,  where  five  sector-specific  agreements  concerning  the  use  of  works  for 
illustration  in  teaching  and  research  activities  were  only  concluded  in  2005,  following  a  joint 
declaration  by  the  Ministry  of  National  Education  representing  the  educational  institutions  and  the 
Ministry of Culture representing the rightholders. During the implementation process of the Directive, 
as  a  result  of  the  intervention  of  educational  establishments  and  in  particular  of  universities,  an 
exception  governing  the  use  of  works  for  purposes  of  illustration  for  teaching  and  scientific  research 

EN 

16 

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In  the  Member  States  where  the  exception  for  teaching  and  research  is  reflected  in  the 
national  law,  the  relevant  provisions  differ  to  a  significant  extent.  While  some  countries 
extend the exception to the rights of communication and making available to the public (e.g. 
Belgium, Luxembourg, Malta, and France (as of January 2009)), others restrict it to the right 
of  reproduction  (Greece,  Slovenia)  or  allow  communication  to  the  public  only  on  the 
condition that it cannot be received outside the premises of the educational institution (UK). 
Germany, on the other hand, makes a distinction between teaching and research activities; for 
the  former,  it  allows  the  use  of  protected  works  only  for  teaching  in  the  classroom  and  by 
intranet where it is limited to a group of students attending a particular course. The approach 
towards research is less restrictive as the making available of works is permitted "for purposes 
of own research" and "to a limited number of participants"35. 

As regards the mode of copying, most Member States do not make any distinction between 
analogue  and  digital  copies,  and  both  of  them  are  therefore  covered  by  the  exception. 
However, the wording of the Hungarian copyright act restricts the scope of the exception to 
analogue  reproductions  only.  Also,  in  Denmark,  there  has  been  no  agreement  on  digital 
copying between the collective rights managers and educational institutions. Universities and 
schools have been granted a license covering only the making of paper copies of excerpts of 
works.  The  only  extended  collective  license  which  includes  such  activities  as  scanning, 
printing, sending by e-mail, downloading and storage has been issued with regard to the use 
of works on the Internet in so-called teacher training colleges.  

Different treatment of the same act in different Member States may lead to legal uncertainty 
with regard to what is permitted under the exception, especially when teaching and research 
are  carried  out  within  a  transnational  framework.  An  increasing  number  of  students  and 
researchers  prefer  to  have  access  to  relevant  learning  resources  not  only  in  a  traditional 
classroom  environment,  but  also  using  online  networks,  without  any  constraints  of  time  or 
geography. Provisions only allowing reprographic copying of works or requiring students to 
be  physically  present  on  the  premises  of  the  educational  institutions  do  not  allow  these 
establishments to exploit the potential of the new technologies and engage in distance learning 
programs.  As  the  Gowers  Review  points  out:  "this  means  that  distance  learners  are  at  a 
disadvantage  compared  with 
these  constraints 
disproportionately impact on students with disabilities who may work from remote locations. 
(…) The relevant copyright exception should be extended to allow passages from works to be 
made available to students by email or virtual learning environments."36 

those  based  on  campus  and 

thus 

Another  divergence  between  the  Member  States  concerns  the  length  of  the  excerpts  from 
works which can be reproduced or made available for teaching and research purposes. Thus, 
the exception could cover the whole work (Malta), journal articles and short excerpts of works 
(Belgium,  Germany  or  France)  or  short  excerpts  of  works  only,  no  distinction  being  made 
between different types (and lengths) of works (Luxembourg). Concerning the last example, 
works such as journal articles can be considered in practical terms as being excluded from the 

was for the first time introduced into the French Intellectual Property Code; this provision, replacing the 
previous contractual system will enter into force in January 2009. 
Section §52a of the UrhG (the German copyright act) also requires users to pay fair compensation to the 
rightholders for making a work available.  
Gowers Review of Intellectual Property 2006, para. 4.17 and 4.19 

35 

36 

EN 

17 

   EN 

 
                                                                                                                                                         
scope of the exception as there is normally little interest in using only a short fragment of a 
journal article for teaching and scientific research.  

With regard to the institutions that could benefit from the exception for teaching and scientific 
research,  the  Member  States  have  also  adopted  different  solutions.  While  the  German 
Copyright  Act  refers  to  "schools,  universities,  post-secondary  institutions  and  non-
commercial  career-training  institutions",  other  countries  like  the  UK  use  the  generic  term 
"educational  establishments"  without  any  further  details,  whereas  the  French  Intellectual 
Property  Code  does  not  give  any  indication  as  to  the  institutions  to  which  the  exception 
applies and follows the wording of Article 5(3)(a): "illustration for teaching and research". In 
Spain and in Greece the exemption only covers teaching, thus excluding research activities.  

Apart  from  a  certain  degree  of  legal  uncertainty  due  to  limited  harmonization,  the  above-
mentioned  differences  can  constitute  a  problem  when  students  enroll  for  courses  in  other 
countries, within the framework of distance learning, or when teachers and researchers carry 
out  their  activities  in  several  institutions  located  in  different  countries.  Depending  on  the 
country, identical acts could be legal or illegal. The causes of this problem lie in the different 
ways  in  which  Member  States  have  implemented  the  exception  into  their  national  laws. 
Therefore,  there  have  been  calls  to  introduce  a  mandatory  exception  for  teaching  and 
scientific  research,  with  a  clearly  defined  scope  in  the  Directive.  For  example,  the  Gowers 
Review recommends that the educational exception "should be defined by category of use and 
activity and not by media or location''. 37 

However, making the exception mandatory and further clarifying its scope does not imply its 
extension,  because  the  interests  of  the  rightholders  must  be  taken  into  consideration.  For 
instance,  with  regard  to  the  exemption  to  communication  to  the  public  for  purposes  of 
illustration for teaching and research, the Gowers Review states that "it will be necessary to 
ensure that access to such (learning and research) material should not be generally available to 
the public"38 but only to a restricted audience of students and researchers. In this vein, Recital 
44 of the Copyright Directive states that "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." The proper 
balance  needs  to  be  struck  between  ensuring  an  adequate  level  of  protection  of  exclusive 
rights  and  at  the  same  time  enhancing  the  competitiveness  of  European  education  and 
research. 

Questions:  

(19)  Should  the  scientific  and  research  community  enter  into  licensing  schemes  with 
publishers  in  order  to  increase  access  to  works  for  teaching  or  research 
purposes? Are there examples of successful licensing schemes enabling online use 
of works for teaching or research purposes? 

37 
38 

Gowers Review of Intellectual Property 2006, para. 4.15 
Gowers Review of Intellectual Property 2006, para. 4.18 

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18 

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(20)  Should  the  teaching  and  research  exception  be  clarified  so  as  to  accommodate 

modern forms of distance learning? 

(21)  Should  there  be  a  clarification  that  the  teaching  and  research  exception  covers 
not  only  material  used  in  classrooms  or  educational  facilities,  but  also  use  of 
works at home for study? 

(22)  Should there be mandatory minimum rules as to the length of the excerpts from 
works  which  can  be  reproduced  or  made  available  for  teaching  and  research 
purposes? 

(23)  Should  there  be  a  mandatory  minimum  requirement  that  the  exception  covers 

both teaching and research? 

3.4. 

User-created content 

Consumers are not only users but are increasingly becoming creators of content. Convergence 
is leading to the development of new applications building on the capacity of ICT to involve 
users in content creation and distribution. Web 2.0 applications such as blogs, podcasts, wiki, 
or video sharing, enable users easily to create and share text, videos or pictures, and to play a 
more  active  and  collaborative  role  in  content  creation  and  knowledge  dissemination. 
However, there is a significant difference between user-created content and existing content 
that is simply uploaded by users and is typically protected by copyright. In an OECD study, 
user-created content was defined as "content made publicly available over the Internet, which 
reflects  a  certain  amount  of  creative  effort,  and  which  is  created  outside  of  professional 
routines and practices"39. 

The Directive does not currently contain an exception which would allow the use of existing 
copyright  protected  content  for  creating  new  or  derivative  works.  The  obligation  to  clear 
rights before any transformative content can be made available can be perceived as a barrier 
to  innovation  in  that  it  blocks  new,  potentially  valuable  works  from  being  disseminated. 
However, before any exception for transformative works can be introduced, one would need 
to carefully determine the conditions under which a transformative use would be allowed, so 
as not to conflict with the economic interests of the rightsholders of the original work.  

There  have  been  calls  for  the  acceptance  of  an  exception  for  transformative,  user-created 
content.  In  particular,  the  Gowers  Review  recommended  that  an  exception  be  created  for 
"creative,  transformative  or  derivative  works"40,  within  the  parameters  of  the  Berne 
Convention  three-step  test.  The  Review  acknowledges  that  this  would  be  contrary  to  the 
Directive  and  accordingly  calls  for  its  amendment.  The  objective  of  allowing  such  an 
exception  would  be  to  favour  innovative  uses  of  works  and  to  stimulate  the  production  of 
added value41. 

39 
40 
41 

Participative Web and User-Created Content, OECD 2007, p. 9. 
Recommendation 11. 
The Review clearly referred to "transformative use" under US law and to the example of sampling in 
the Hip Hop music industry. However, in US law transformative use alone is not a defence to copyright 
infringement. Instead, it is one of the conditions required for a use to qualify for the fair use defence 
under section 107 U.S. Copyright Act.  

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Under  the  Berne  convention,  a  transformative  use  would  be  prima  facie  covered  by  the 
reproduction  right42  and  the  right  of  adaptation.  An  exception  to  these  rights  would  have  to 
pass the three-step test. In particular, it would have to be more precise and refer to a specific 
policy justification or types of justified uses. It would also have to be limited to short takings 
(short  passages,  excluding  particularly  distinctive  takings),  therefore  not  infringing  the  right 
of adaptation43.  

Under  the  Directive,  certain  exceptions  potentially  provide  some  measure  of  flexibility  in 
relation to free uses of works. Other than the previously mentioned exceptions, article 5(3)(d) 
allows  quotations  "for  purposes  such  as  criticism  or  review".  Criticism  and  review  are 
therefore  only  examples  of  possible  justifications  for  quotations.  This  implies  that  article  5 
(3)(d)  can  be  given  a  broad  scope,  although  the  quotation  must  be  limited  to  "the  extent 
required  by  the  specific  purpose",  and  in  accordance  with  "fair  practice".  The  "specific 
purpose" of the commentary need not be the analysis of the work itself. However, a degree of 
taking which is fair in a commentary on that particular work may become unfair practice if it 
is for the purpose of commenting on a wider issue. Another exception allowing some measure 
of  flexibility  is  article  5(3)(k)  of  the  Directive  which  exempts  uses  "for  the  purposes  of 
caricature, parody or pastiche". Although these uses are not defined, they allow users to reuse 
elements of previous works for their own creative or transformative purpose. 

Questions:  

(24)  Should there be more precise rules regarding what acts end users can or cannot 

do when making use of materials protected by copyright? 

(25)  Should an exception for user-created content be introduced into the Directive? 

4. 

CALL FOR COMMENTS 

The  combined  operation  of  broad  exclusive  rights  with  specific  and  limited  exceptions 
highlights  the  question  of  whether  the  exhaustive  list  of  exceptions  under  the  Directive 
achieves  "a  fair  balance  of  rights  and  interests  between  […]  the  different  categories  of 
rightholders and users"44.  

A  forward  looking  analysis  requires  consideration  of  whether  the  balance  provided  by  the 
Directive is still in line with the rapidly changing environment. Technologies and social and 
cultural  practices  are  constantly  challenging  the  balance  achieved  in  the  law,  while  new 
market players, such as search engines, seek to apply these changes to new business models. 
Such developments also have the potential to shift value between the different entities active 
in  the  online  environment  and  affect  the  balance  between  those  who  own  rights  in  digital 
content and those who provide technologies to navigate the Internet.  

It is in these circumstances that the present Green Paper seeks all stakeholders' views as to the 
technological  and  legal  developments  described  above.  The  questions  submitted  are  of  an 

42 
43 
44 

Article 9 Berne Convention. 
Berne Convention Article 12, Right of Adaptation, Arrangement and Other Alteration. 
Recital 31. 

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indicative nature only and stakeholders are free to submit comments on any other issues that 
are addressed or touched upon in this Green Paper.  

Answers and comments, which may cover all or only a limited number of the above issues, 
should reach the following address by 30 November 2008. 

markt-d1@ec.europa.eu. 

If stakeholders wish to submit confidential responses, they should indicate clearly which part 
of their submission is confidential and should not be published on the Commission's website. 
All  other  submissions,  not  clearly  marked  as  confidential,  may  be  published  by  the 
Commission. 

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