Council conclusions of 20 November 2008 on the development of legal offers of online cultural and creative content and the prevention and combating of piracy in the digital environment
Date: 2008-11-20
Institutions: Council of the European Union
Subjects: EU Member State, audiovisual piracy, copyright, cultural policy, digital technology, dissemination of information, freedom of expression, intellectual property

13.12.2008

EN

Official Journal of the European Union

C 319/15

Council conclusions of 20 November 2008 on the development of legal offers of online cultural and
creative content and the prevention and combating of piracy in the digital environment

(2008/C 319/06)

THE COUNCIL OF THE EUROPEAN UNION,

2. CONSIDERING with interest:

1. REFERRING in particular to:

— the Charter of Fundamental Rights of

the European
Union of 7 December 2000 which guarantees the protec-
tion of personal data, freedom of expression and infor-
mation and the protection of intellectual property,

— the Unesco Convention of 20 October 2005 on the
the diversity of cultural

protection and promotion of
expressions (1),

— Directive 2007/65/EC of the European Parliament and of
the Council of 11 December 2007 on audiovisual media
services (2), which sets out a number of requirements as
regards cultural diversity and the promotion of European
works by linear
audiovisual media
and non-linear
services,

— 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 and Directive 2004/48/EC of
the
the Council of 29 April
European Parliament and of
2004 on the
intellectual property
rights (3),

enforcement of

the European Parliament and of

— 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 (4), Directive 95/46/EC
of
the Council of
24 October 1995 on the protection of individuals with
regard to the processing of personal data and on the free
movement of such data (5) and Directive 2002/58/EC of
the European Parliament and of the Council of 12 July
2002 concerning the processing of personal data and the
protection of privacy in the electronic communications
sector (6).

(1) Council Decision 2006/515/EC of 18 May 2006 on the conclusion of
the Convention on the Protection and Promotion of the Diversity of
Cultural Expressions (OJ L 201, 25.7.2006, p. 15).

(2) Directive 2007/65/EC of the European Parliament and of the Council
of 11 December 2007 amending Council Directive 89/552/EEC on the
coordination of certain provisions laid down by law, regulation or
administrative action in Member States concerning the pursuit of televi-
sion broadcasting activities (OJ L 332, 18.12.2007, p. 27).

(3) OJ L 167, 22.6.2001, p. 10.
OJ L 157, 30.4.2004, p. 45.

(4) OJ L 178, 17.7.2000, p. 1.
(5) OJ L 281, 23.11.1995, p. 31.
(6) OJ L 201, 31.7.2002, p. 37.

— the Commission communication of 3 January 2008 on
creative content online in the single market, the resulting
consultation of stakeholders and setting up of a European
platform of creative content online and the Commission's
intention of
in cooperation with the
Member States, to finding ways of meeting the challenges
identified in this connection,

contributing,

— the European Charter

for

the Development and the

Take-up of Film Online of 23 May 2006,

— the Memorandum of Understanding on Diligent Search
Guidelines for Orphan Works, signed on 4 June 2008,
under the auspices of the Commission, by representatives
libraries, archives, audiovisual archives and right
of
holders,

— the initiatives launched by the public authorities or by
professionals in a certain number of Member States and
in some extra-European partners in order to find prac-
tical concerted ways of encouraging the development of
legal online offer and preventing and combating piracy,
such as: awareness-raising campaigns, the organisation of
interprofessional cooperation, self-regulation or coregula-
tion agreements, the introduction of non-judicial, educa-
tional, step-by-step mechanisms, etc.

3. NOTES that:

— the online distribution of cultural and creative assets,
particularly via the internet, provides a tremendous
opportunity for everyone to have access to culture,
economic development, employment and cultural diver-
sity,

— there is still considerable potential for developing the
range of cultural and creative content available legally
online in Europe,

— online piracy, which in some cultural and creative sectors
is reaching a critical threshold,
is likely to do lasting
harm to the appropriate remuneration of copyright
holders and holders of related rights; besides its conse-
quences for the marketing of
traditional media (CD,
DVD, etc.), it is a major factor holding back the develop-
ment of
the legal provision of cultural and creative
content online on which, to a large extent, the dynamism
of
the European industry for cultural and creative
content depends, and threatens cultural creativity and
diversity,

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Official Journal of the European Union

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— although the use of

technical systems for protection
(Technical Protection Measures (TPM)) or rights-manage-
ment information (Digital Rights Management (DRM))
may in some cases, while taking due account of the prin-
ciple of personal-data protection, contribute to protecting
and managing rights in the digital world, the lack of
interoperability or transparency of these systems creates
insecurity for consumers and limits their use of
the
content offered by the various platforms.

4. BELIEVES in this context that:

— the development of a legal online offer which is diverse,
of high quality, accessible, easy to use and consumer
friendly, on the one hand, and preventing and combating
piracy, on the other, are necessary for the development
of the information and communication society and the
promotion of cultural diversity in the digital world,

— it is indispensable for right holders to be guaranteed
appropriate remuneration if creation and cultural diver-
sity are to be fostered.

5. CONSIDERS that in pursuing these objectives account should

be taken of:

— the need to ensure a fair balance between the various
fundamental rights, particularly the right to personal data
protection, freedom of expression and information and
the protection of intellectual property, and to seek, when
implementing Community law, solutions in compliance
with the general principles of Community law, in particu-
lar the principle of proportionality (1),

— consumers' expectations in terms of access and the ease
of use of services and the diversity and quality of the
content offered online,

— the diversity and transformation of the business models
sector, particularly small and
of enterprises
medium-sized enterprises, and the constant rapid evolu-
tion of technologies,

in this

— the variety of developments in digital economies, the
situation of the legal offer online and the extent of the
problem of piracy in the Member States, as well as the
legal traditions of each of them,

— the need to promote cultural diversity in Europe, in par-
ticular by encouraging online services to help develop
European cultural and creative content.

6.

INVITES MEMBER STATES to:

effective, fair and proportionate solutions promoting the
development of legal online offer and the prevention and
combating of piracy,

— encourage, where appropriate and in accordance with
their legal traditions, the parties concerned to review the
periods within which films may be made available (media
timescale covered by Article 3d of Directive 2007/65/EC)
in order to encourage the diversity and attractiveness of
legal offer of films online,

— contribute actively to the promotion of European audio-
visual and film offer by linear and non-linear audiovisual
media services in the context of the transposition of the
Directive relating to audiovisual media services, notably
through exchange of best practice.

7.

INVITES THE COMMISSION:

— to contribute to improving knowledge, in close coopera-
tion with the Member States and with the professionals
concerned, particularly through the development and
pooling of statistical data, of the digital cultural economy
in all its diversity, in particular of legal online offer, and
of piracy: its scale, its causes and its consequences for the
economy of creation and cultural diversity,

— to distribute information, particularly that provided by
the platform, on best practice and innovative responses
to the challenges identified in the context of the consulta-
tion of 3 January 2008,

— within 18 months, to present a report based on contri-
butions by the Member States on the various initiatives
being undertaken to develop legal online offer and to
prevent and combat piracy,

— to examine how to increase the digitalisation and online
distribution of cinematographic and audiovisual works in
the framework of
the implementation of Community
programmes, notably the MEDIA programme,

— more generally, to contribute by means of all relevant
policies to the development of legal online offer and the
fight against piracy.

8.

INVITES THE MEMBER STATES AND THE COMMISSION, within
their respective competences, to:

— launch or encourage concerted approaches by the parties
concerned, as soon as possible, designed to find concrete,

(1) CJEC judgment of 29 January 2008, Productores de Música de España

(Promusicae) v Telefónica de España SAU, Case C-275/06.

— improve consumer information,

in particular through
objective information campaigns, on copyright and
related rights and the consequences of failure to observe
them and, more generally, to make all players, including
professionals, aware of the consequences of piracy for
creation and cultural diversity,

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— contribute to consumer information on the conditions
for the use of content on different equipment and plat-
forms and on the restrictions applying to the use of tech-
nical measures to protect and manage rights,

— initiate or encourage efforts by industry, right holders
and consumers to work together to promote the inter-
operability and ensure the transparency of
technical
measures to protect and manage rights, for example by
means of a system of identification/labelling,

— pursue the objective of cultural diversity, in particular in
their policies on copyright and related rights in relation
to online cultural and creative content,

— contribute actively to reinforcing compliance with and
protection of copyright and related rights at international
level,
the relevant bilateral and
multilateral agreements and political dialogue and coop-
eration with third countries.

in the framework of

9.

INVITES THE PARTIES CONCERNED to launch consultations or
to join them, in a constructive spirit, with a view to:

— finding concrete, effective and fair solutions promoting
the development of legal online offer and the prevention
and combating of piracy,

— promoting the interoperability and ensuring the transpar-
ency of technical measures to manage and protect rights.