The Follow-up of the WIPO-Treaties - Information from Europe

Europe - EU

EEA / EFTA

Taken together, the EU-countries have some 375 mill. inhabitants.

WIPO-Treaties and Europe

Switzerland — also an EFTA member - has a special agreement.

Thirteen countries have applied for membership in the European Union:

Estonia Poland Cyprus Slovenia Czech Republic Hungary	are in the first group, with altogether ca. 60 mill. inhabitants. Accession may take place between 2002-2006 depending on negotiation.
Bulgaria Latvia Lithuania Slovakia Romania	are in the second group with ca. 43 mill. Inhabitants

Countries in both these groups have "pre-accession-agreements"
These agreements seem to oblige the applicants to guarantee adequate protection of copyright at a level similar to that which exists in the Council.
= will take over the directives eventually

Turkey and Malta have also applied for membership, but have no pre-accession-agreement.

Other countries have free trade agreements with EU. Altogether, the EU-legislation will be implemented in more than 50 countries with around 475 mill. inhabitants.

Conclusion

EU -initiative and solutions are vital for the legal developments in a major part of Europe.

WIPO-TREATIES AND EUROPE

Belarus and Hungary are the only countries that to this date have ratified or acceded.

The EU-member states and the Community as such are all signatories -
Also: Croatia, Estonia, Monaco, Republic of Moldavia, Rumania and Switzerland have all signed, but not yet ratified.

The Union Legislation

The smooth operation of the market requires a levelled playing field - which means harmonisation of copyright legislation, which do have an impact on the market.

The legislative Process is

complex, but you need to keep in mind that the legal initiatives come from the Commission. Its proposals are discussed and ultimately decided in Council (of Ministers representing the Government of the member countries) where the voting powers differs according to population in given country. Before that, agreement must have been reached with the European Parliament after specific procedures.

Consequently
Lobbying possibilities exist and they are a necessity with all these institutions.

Directives is our field the end result - these tell members states what has to be implemented in their national legislation. How they do it is up to them. The Commission will supervise the implementation.

The EU Court can ultimately decide if implementation is correct. This means that if a directive is a result of a commonly binding treaty for the member states and the Community, like the new WIPO treaties will be, the Court will have the power to interpret these obligations.

WIPO Treaties and EU

The Commission give priority to get in place the necessary legislation to be able to ratify, - both WIPO treaties as quickly as possible.

A proposal for a directive harmonising important copyright matters in the Information Society was put forward late 1997, and will fulfil treaty obligations.

As of today, the Parliament has had its first reading and the Commission has responded to these proposals and suggestions in an Amended proposal, which I will inform you of and comment upon.

The end of the process: Possibly early next spring - into force 18 months later.

Generally speaking - the overall situation in EU and Scandinavia was that most of the new treaty obligations where fulfilled, with some important exceptions for most of Member States.

WIPO Copyright Treaty

• protection of ECMS
• protection of technological measure

were lacking is most of EU/EEA-legislation.

Some countries also had to clarify the legal status concerning situations where material was made available on demand.

In its proposal, the Commission went significantly further in its harmonising objectives than was called for in order to be able to ratify the WIPO treaties.

The directive concerns not only the digital agenda, but also the analogue world.

It is not possible here to go into the details of the directive, but I will highlight some questions which has been of concern for libraries. (I speak on my own behalf, but will - when taking stand - reflect the present position of my government).

1. The new directive will not effect earlier directives in this field - that is the directives on:
   • computer programmes
   • rental and lending right
   • term of protection
   • satellite and cable
   • database protection

The directive proposes a Reproduction Right (Article 2)
for all categories of right holders, both authors and neighbouring right holders. The formulation of that right recall the debate of the Geneva Conference, and defines the reproduction right as a right to prohibit direct or indirect temporary or permanent, in any form, in whole or in part.

The second right (Article 3) is
implementing the right of communication to the public, including the right of making available works or other subject matter.

It will be up to the member states to define what is public, but there are clear indications that it is meant to be very restricted number.

It is now clear that the Commission accepts taht the presentation of a work on the screen of a computer, made available in a library, is not a separate act - but it is unclear which legal solution should express this.

The amended text makes it clear taht the mere provision of physical facilities for enabling or making a communication does not in itself amount to an act of communication to the public.

Ariticle 4

It provides for a right to control import into the Union - except when the first sale or other transfer of ownership takes place within the Community with the right-holder's consent.

This rule - regional consumption of the distribution right - has earlier been afforded to neighbouring right holders, but not to authors.

Small importing countries like Norway, wants international consumption - which means that if a copy of a book is sold anywhere in the world, it may be imported into Norway without having to ask for consent.

The Article which has caused the most heated debate - and still does - is the proposed

Article 5. Here the Commmission sets out to harmonise exceptions to the reproduction and communication right. It does so by suggesting one compulsory exception concerning temporary acts of reproduction.

Right-holders wants these temporary acts to be covered by the exclusive right to be able to make service providers liable (and libraries as well - and private users browsing the net). The question of liability is, however, dealt with in a proposed directive on electronic commerce, the negotiation on which has barely started.

It is important to note that the exception as formulated does not require that the material is put on the net with the right-holders consent, or that the use is otherwise permitted by law. The right-holders have fiercely fought for such a requirement, especially IFPI.

(Also, a compromise is discussed which provide right-holders with a right to seek injunction if service providers, knowing they are prividing illegal material, continue to do so after being made aware of it.

The Article then goes on in part 2 and 3 to define an exhaustive list of exceptions which member countries may introduce / keep in their legislative - both analogue and digital. Many member states have indicated that some of their present exceptions must be abolished as a result of this proposal, if the present wording survives.

Many put a question mark on how these exceptions which have existed in and only concerns the analogue world could affect the internal common market. Norway is amongst these.

In addition to the specific mentioning of the permitted exceptions - all exceptions are to be measured according to the "3-step-test" found in WIPO/TRIPS and Bern Article 9.2.

The overall picture
is that libraries' possibilities to copy on paper and in digital format will be restricted - copying is only allowed for archival and preservation purposes. How wide this exception is, is unclear.

It follows that according to the proposal digital copying for inter-lending requires permission

INTRANET-solutions will not be allowed.

Private Copying

The copying allowed for private purposes, and for the purpose of illustration for teaching and scientific research, are allowed under the condition that right-holders receive faire compensation.

Distant education seems to fall under the proposed exception, but the wording is not clear.

As a general observation, it seems that - all digital library activities except making a PC available, and copying for archival and conservation purposes will require licenses. This is too restrictive in my opinion.

Exceptions for private copying on paper or audio-visual copying, is like the exception for teaching and research, subject to fair compensation to the right-holders.

The amended proposal reflects in my opinion that the right-holders lobbyists were very successful in Parliament - fact is, seen from a library perspective and private users - the present wording is more restrictive than the initial proposal.

The lobbyists of libraries and broadcasters obviously were unsuccessful.

The second round has now started, providing new opportunities.

Article 6

The proposal says member states shall provide adequate protection against circumvention of technological measures which will result in infringing use of works or protected matter.

The meaning seems to be that circumvention is ok if the use is permitted by law - i.a. is an exception - the exception to this again is circumvention for private use: Private copying will not be allowed if adequate protection is in place.

It must be said, however, that the wording of this Article is complex and complicated, and does to some observers' opinion not meet its pronounced objectives.

Article 7

EMCS- protection

All taken together

• the debate is not over
• all the reason for continued discussion and lobbying
• differences between US and Europe may be the result. Analyses of the consequences of such a situation has been lacking in the European debate - this should be analysed.

This reminds me of a proverb, cited by a Nigerian representative in the 1996 Geneva Diplomatic Conference: