Second, the EUCD stipulates an exhaustive list of exceptions to the right of reproduction and the right of communication However, adoption of only one exception--regarding temporary acts of reproduction integral to a technological process enabling lawful use or transmission, such as proxy caching by an Internet service provider( SP)-is mandatory for member states, and the provisions wording creates a multitude of interpretative questions. The Directive's 20 optional exemptions and limitations on rights of reproduction and communication concern the public domain. For three of these exceptions--reprography, private use, and broadcasts made by social institutions such as hospitals or prisons--the rightholders should receive fair compensation. Exceptions to distribution rights are granted depending on the exceptions relating to reproduction or communication Third, the EUCD implements the WIPO Treaties and requires impose legal liability for circumvention of any effective hs that member states to enact anti-circumvention provisio technological measure protecting copyrighted materials or rights management information Technological measures are defined as any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts not authorized by the rightholder of a copyright or a related right The standard for the"effectiveness" of such measures has not yet been determined. The Directive also requires that in the bsence of voluntary measures taken by rightholders, member states ensure the implementation of exceptions or limitations for certain privileged uses. EU member states may incorporate additional exceptions and limitations--for instance, for private use--if certain requirements are met. However, it is noteworthy that these exceptions do not apply to on-demand services such as an online music store. Further, the eucd does not set forth limitations on the legal protection of technological measures for purposes such as news reporting, parody and criticism, or quotation. Thus, the Directive differs significantly from its U.s counterpart and gives EU member states significant leeway to define the scope of their own Digital Millennium Copyright Act (MCA) type of protections Finally, it is also important to recognize what the EUCd does not harmonize. It does not deal with important issues such as ownership of rights, copyright contracts, moral rights, collective administration of rights, choice of law and jurisdictional issues EU legislative developments Although the EUCD has not yet been fully implemented by the EU member states, in February 2003 the European Commission proposed another directive to enforce IP rights and bolster the fight against piracy and counterfeiting. Despite strong riticism by civil liberties organizations, scientists and even some ndustry groups, the controversial IP Enforcement Directive- supported by the music and movie industries and the U.s overnment, among others--moved through the legislative process with almost unprecedented speed and was adopted in a wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. ge 10 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 10 of 35 Second, the EUCD stipulates an exhaustive list of exceptions to the right of reproduction and the right of communication. However, adoption of only one exception—regarding temporary acts of reproduction integral to a technological process enabling lawful use or transmission, such as proxy caching by an Internet service provider (ISP)—is mandatory for member states, and the provision’s wording creates a multitude of interpretative questions. The Directive’s 20 optional exemptions and limitations on rights of reproduction and communication concern the public domain. For three of these exceptions—reprography, private use, and broadcasts made by social institutions such as hospitals or prisons—the rightholders should receive fair compensation. Exceptions to distribution rights are granted depending on the exceptions relating to reproduction or communication. Third, the EUCD implements the WIPO Treaties and requires member states to enact anti-circumvention provisions that impose legal liability for circumvention of any effective technological measure protecting copyrighted materials or rights management information. Technological measures are defined as any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts not authorized by the rightholder of a copyright or a related right. The standard for the “effectiveness” of such measures has not yet been determined. The Directive also requires that in the absence of voluntary measures taken by rightholders, member states ensure the implementation of exceptions or limitations for certain privileged uses. EU member states may incorporate additional exceptions and limitations—for instance, for private use—if certain requirements are met. However, it is noteworthy that these exceptions do not apply to on-demand services such as an online music store. Further, the EUCD does not set forth limitations on the legal protection of technological measures for purposes such as news reporting, parody and criticism, or quotation. Thus, the Directive differs significantly from its U.S. counterpart and gives EU member states significant leeway to define the scope of their own Digital Millennium Copyright Act (DMCA) type of protections. Finally, it is also important to recognize what the EUCD does not harmonize. It does not deal with important issues such as ownership of rights, copyright contracts, moral rights, collective administration of rights, choice of law and jurisdictional issues. /0 , , Although the EUCD has not yet been fully implemented by the EU member states, in February 2003 the European Commission proposed another directive to enforce IP rights and bolster the fight against piracy and counterfeiting. Despite strong criticism by civil liberties organizations, scientists and even some industry groups, the controversial IP Enforcement Directive— supported by the music and movie industries and the U.S. government, among others—moved through the legislative process with almost unprecedented speed and was adopted in a
fast-track proceeding in April 2004 by the EU Parliament and the Council The IP Enforcement Directive's powerful new enforcement measures ensure a high, equivalent and homogeneous level of protection of IP rights across the EU common market. The Directive, for instance, requires that EU member states mplement aggressive evidence preservation mechanisms including secret court authorizations for raids by plaintiffs'agents (Anton Piller orders"); precautionary seizures of alleged nfringers' property(e.g, servers, computers, etc. ) including by blocking bank accounts and other financial assets(Mareva injunctions"); and forced disclosures of personal and commercial information, akin to the subpoena powers granted by the DMCA The IP Enforcement Directive, to be implemented by the member states by 29 April 2006, applies to any infringement of IP rights as provided for by community law or by the national law of eu member states. Thus. the dir pe is extre broad. It includes even minor unintentional and noncommercial infringements, including peer-to-peer(P2P)file-sharing, although some of the measures set forth in the Directive(e.g precautionary seizure and blocking of bank accounts)can be applied only in cases where infringing acts are carried out on a commercial scale. In sum, the Directive significantly increases enforcement on behalf of iP owners More recently, an EU official confirmed that committees of the EU Parliament and the Council are working on two pieces of egislation aimed at criminalizing piracy and counterfeiting. Both a draft directive and a draft decision were expected to be introduced by the end of 2004, in tandem with a study on the impact of piracy on the IP industry.2 However, no update was published at the time of this writing in December 2004 Moreover, the Commission recently assessed the coherence of the existing legislation in a staff working paper reviewing the egal framework in the field of copyright and related rights. The working paper concludes that there is no need for a substantive revision of existing directives, but that fine-tuning is necessary to ensure that definitions(e.g, the term"reproduction right) exceptions and limitations set out in different sector-specific Directives are coherent and in compliance with the standards set forth by the EUCD. In the context of the working document, the Commission notably recommends not to extend(from 50 years to 95 years) the copyright protection for recorded music as advocated by the entertainment industry http://www.heise.de/newsticker/meldung/48232. 25 This statement is in tension with the Commission's earlier discussion of a"Super Directive"on copyright and related rights in the contextthe2002SantiagodeCompostelarevisionconferenceSeehttp://www.edri.org/issues/copyrighteu wp-1204-0003 Gartner G2. com @2004 Gartner, Inc. and The Berkman Center for Intemet Society. All rights reserved. ge 11 of 35
wp-1204-0003 GartnerG2.com © 2004 Gartner, Inc. and The Berkman Center for Internet & Society. All rights reserved. Page 11 of 35 fast-track proceeding in April 2004 by the EU Parliament and the Council. The IP Enforcement Directive’s powerful new enforcement measures ensure a high, equivalent and homogeneous level of protection of IP rights across the EU common market. The Directive, for instance, requires that EU member states implement aggressive evidence preservation mechanisms, including secret court authorizations for raids by plaintiffs’ agents (“Anton Piller orders”); precautionary seizures of alleged infringers’ property (e.g., servers, computers, etc.), including by blocking bank accounts and other financial assets (“Mareva injunctions”); and forced disclosures of personal and commercial information, akin to the subpoena powers granted by the DMCA. The IP Enforcement Directive, to be implemented by the member states by 29 April 2006, applies to any infringement of IP rights as provided for by community law or by the national law of EU member states. Thus, the Directive’s scope is extremely broad. It includes even minor, unintentional and noncommercial infringements, including peer-to-peer (P2P) file-sharing, although some of the measures set forth in the Directive (e.g., precautionary seizure and blocking of bank accounts) can be applied only in cases where infringing acts are carried out on a commercial scale. In sum, the Directive significantly increases enforcement on behalf of IP owners. More recently, an EU official confirmed that committees of the EU Parliament and the Council are working on two pieces of legislation aimed at criminalizing piracy and counterfeiting. Both a draft directive and a draft decision were expected to be introduced by the end of 2004, in tandem with a study on the impact of piracy on the IP industry. 23 However, no update was published at the time of this writing in December 2004. Moreover, the Commission recently assessed the coherence of the existing legislation in a staff working paper reviewing the legal framework in the field of copyright and related rights. 24 The working paper concludes that there is no need for a substantive revision of existing directives, 25 but that fine-tuning is necessary to ensure that definitions (e.g., the term “reproduction right”), exceptions and limitations set out in different sector-specific Directives are coherent and in compliance with the standards set forth by the EUCD. In the context of the working document, the Commission notably recommends not to extend (from 50 years to 95 years) the copyright protection for recorded music as advocated by the entertainment industry. 23 See http://www.heise.de/newsticker/meldung/48232. 24 See http://europa.eu.int/comm/internal_market/copyright/review/review_en.htm. 25 This statement is in tension with the Commission’s earlier discussion of a “Super Directive” on copyright and related rights in the context the 2002 Santiago de Compostela revision conference. See http://www.edri.org/issues/copyright/eu