MedinaOrtega INI-report-Copyright JURI-consolidated

Manuel Medina Ortega report on the harmonization of certain aspects of copyright and related rights in the information society
Official procedure file on the EP website

 The official version (with quite a few numbering changes and some stylistic edits) of the text adopted by the JURI Committee is available:

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Unofficial version including amendments adopted in Committee:

Copyright and the information society
1. Recalls that the adoption of Directive 2001/29/EC was one of the priority objectives laid down by the Lisbon European Council of 23 and 24 March 2000 in the context of the process leading to a competitive, dynamic, knowledge-based economy;

2. Regards the application of that directive in the various Member States and its effects on harmonisation of copyright as satisfactory;

3. Notes that any reform of the directive would be undesirable given that the process of its transposition by the Member States did not end until 2006;

4. Takes the view that Directive 2001/29/EC constitutes a fair balance between the interests of the various players involved;

5. Recalls that Directive 2001/29/EC plays an important role in adapting copyright and neighbouring rights to the information society;

'''5bis. Welcomes the Commission’s facilitation of discussions on private copying levy systems between the interested parties via the creation of a platform bringing together representatives of the industry, right holders and consumers, which aims to assess objectively the situation of said systems and the questions that they raise, in particular in the online environment; encourages this platform to examine, in a consistent and equitable approach, issues such as the legal source, the criteria for the fixation of copyright levies, including the role of consumer surveys in this process and the information on private copying levy systems to be provided to consumers; asks the Commission to keep the Parliament informed of the progress of the work of this platform. In addition, considers that a level playing field would be in the interest of rights holders, consumers and the industry; '''

6. Wonders about the reasons for having the Commission Green Paper concentrate almost solely on the world of publishing, forgetting the other cultural industries;

'''6bis. Reminds the Commission that, as regards the regulation of copyright and related rights, it is essential and imperative for the EU institutions to cooperate closely and to act in concert with each other;''' Insists that the Commission must be consistent in its approach to copyright; suggests that a single DG must coordinate proposals originating in different sectors so as to ensure respect for the legal basis of copyright and to avoid unintended consequences;

7. Takes the view that protection of copyright, neighbouring rights and intellectual property is an important factor in the European Union’s economic competitiveness;

8. Thinks that the creative industry has an essential role to play in the information society

9. Stresses that protecting copyright and neighbouring rights is one of the necessary conditions for stimulating creativity and innovation, as well as for safeguarding cultural identities;

10. Recalls that the copyright system is the most appropriate system for an economy based on knowledge and skill;

11. Takes the view that enforcement of copyright and neighbouring rights is the best guarantee of the development of a legitimate digital market;

12. Notes that the existence of a plurality of offers of cultural goods and services and the dissemination of these throughout the Union’s territory is also dependent upon enforcement and protection of copyright and neighbouring rights;

13. Stresses that the dynamism and diversity of the world of European creative arts is one of the foundations of freedom of expression;

14. Recalls that enforcement of copyright constitutes a means of safeguarding diverse national cultures;

15. Points out that rightholders must be able to enjoy protection of copyright and neighbouring rights in the place where these rights are asserted, regardless of national borders and modes of use, throughout their entire period of validity;

16. Recalls that the information society opens up new markets in which protected works may be exploited by means of electronic products and interactive services;

'''16bis. Applauds the success of the Europeana project in that it demonstrates the viability of the European approach combining respect for copyright with better access for users to creative content online; notes that Europeana, predicated as it is on partnership and ongoing dialogue extending to all stakeholders, enables works to be preserved unimpaired, as well as making for a high standard of legal digitisation; points out in addition that Community copyright legislation stipulates that protected works may not be digitised and made accessible, even in extract form, unless authorisation has been obtained from the rightholders; stresses that this principle is a cornerstone of Europeana;'''

17. Considers it important to guarantee enforcement of authors’ moral rights and is concerned at the spread of ‘work for hire’ contracts which provide for forced surrender of royalties and damage the right of authorship and respect for works;

The regime of exceptions
18. Recalls that, pursuant to Article 5, paragraph 5, of Directive 2001/29/EC, the exceptions provided for by the directive are only applicable in certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rightholder (‘three-step test’ clause);

19. Takes the view that digitisation of works should take account of copyright and neighbouring rights and must not conflict with normal exploitation of the works on the internet, particularly as regards revenue earned by virtue of the right of making available to the public;

20. Takes the view that the approach based on an exhaustive list of non-compulsory exceptions chosen by Directive 2001/29/EC is sufficiently flexible and still valid;

21. Takes the view that the creation of online digital libraries on the basis of large-scale digitisation projects must be carried out entirely in agreement with holders of copyright and neighbouring rights on the basis of voluntarily negotiated agreements;

22. Wishes the exception provided for in Article 5, paragraph 3, point (b), of Directive 2001/29/EC for the benefit of people with disabilities to be applied fully;

23. Invites reflection on the risk to protection of copyright and neighbouring rights represented by the exception to reproduction and communication rights in the context of applied scientific research in the case of distance learning;

24. Wishes the scientific community and researchers to enter into voluntary licence-issuing schemes with publishers in order to improve access to works for purposes of teaching and research; however, takes particular note of the value of learned journals, which play a key role in the peer review process of validating the results of academic research, and the financial viability of which is dependent on paid subscriptions;

25. Takes the view that interoperability between online services and the various types of equipment that receive such services must be encouraged with a view to promoting legal supply and developing a competitive online market;

26. Takes the view that works created by users must comply with copyright and neighbouring rights and that there is no need to introduce a new exception for ‘works created by users’;

Implementation of rights
27. Recalls that the economy of the cultural sector and continuing creative activity are threatened by unauthorised use, which do serious damage to the creative arts sector and technological innovation;

'''27a. Recognises the importance of investment by publishers in content production and dissemination on paper and in digital forms, and stresses the need to combat effectively activities on the part of any third party which do not respect European copyright legislation and which would jeopardise that investment;'''

28. Thinks that the fight against piracy must be waged on a number of fronts: education and prevention, development and accessibility of legitimate digital supply, cooperation and legal penalties;

29. Supports the promotion of an environment conducive to legal distribution of, and access to, online creative content;

'''29a. Urges that the situation in respect of a competitive market for online copyright and related rights be clarified (CISAC case);'''

30. Reminds that the activity of websites offering downloading of works and services that are protected by copyright and neighbouring rights is illegal without the consent of the right holders, as is peer-to-peer exchange of works or services protected by copyrights or neighbouring rights without the consent of the rightholders;

31. Supports the setting-up in the individual Member States of mecanisms, to be employed on instruction from rightholders and using a graduated approach, for the enforcement of copyright on the Internet;

32. Approves the action of various national judicial systems against internet sites that illegally disseminate works on line (e.g. ‘The Pirate Bay’);

33. Wishes the activities of such sites to be suspended by the judicial authorities in the Member States;

34. Calls on the Commission to study the application of Article 8, paragraph 3, of Directive 2001/29/EC and to think about the best ways of combating piracy, particularly on line, in order to help promote and develop a flourishing market in online content;

35. Encourages the launch and use of new, freely available and downloadable EU Internet technologies for identification and recognition, and supports the existing ones, with a view to distinguishing more easily between legal and pirated products;

36. Invites reflection on the responsibility of internet access providers in the fight against piracy;

37. Calls for cooperation from internet access providers in preventing and curbing electronic piracy;

38. Calls for the legal supply of works on the internet to be developed, for example by lowering VAT on digital services;

'''38a. Calls on the Commission to broaden the scope of its next review of Directive 2001/29/EC to cover the implementation of Article 3(2)(a) thereof; believes that the Commission should consider new ways of improving the situation for performers if enforcement of the law provided for by that provision is found to be wanting;'''

39. Instructs its President to forward this resolution to the Council and Commission.

IMCO suggestion adopted
1. Notes that the creative industries are a growing sector that account for 2.6% of European Union GDP (2003) and employ over five million people;

2. Points out that the protection of copyright and related rights in the context of the information society is an important factor in the development of the internal market economy which underpins a virtuous circle of incentive, creation, investment, and dissemination to European consumers;

3. Recalls that the European Community and its Member States are required to respect the international copyright framework, namely Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works of 1886, and Article 13 of the Agreement on Trade-Related Aspects of Intellectual Property Rights, the terms of which are set out in Article 5(5) of Directive 2001/29/EC;

4. Emphasises that it is important to allow everyone to access protected content in full respect of copyright;

6. Recognises that wide dissemination of knowledge contributes to more inclusive and cohesive societies but emphasises that a high level of copyright protection is crucial for intellectual creation and that a balance must therefore be struck in order to ensure the preservation and development of creativity in the interests of all;

7. Emphasises that a European copyright framework providing a high level of protection is a necessary condition for continued innovation and investment by publishers in new electronic products and services, which make an essential contribution to the European Union’s efforts to become the main player in the knowledge economy at world level;

9. Notes that this initial report on the application of articles 5, 6 and 8 of Directive 2001/29/EC does not enable a meaningful assessment, owing to belated transposition by the Member States, and therefore calls on the Commission to concentrate its efforts on full implementation of Directive 2001/29/EC in all its aspects and to ensure a balance between ensuring rewards for rights owners and dissemination to the benefit of European consumers;

10. Regrets that, in its report, the Commission disregards the legislative practice of the countries which joined the European Union after the adoption of the Directive;

11. Hopes that the Commission will allow itself more time to draw up a fuller list of transposition measures and future case law;

12. Considers that application of the Directive must take place within a broader framework, which should in particular take into account the provisions on electronic commerce set out in Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market(OJ L 178, 17.7.2000, p. 1.), Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights(OJ L 157, 30.4.2004, p. 45.) and the provisions on data protection set out in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data(OJ L 281, 23.11.1995, p. 31.);

14. Considers, on the one hand, that education and awareness-building are crucial, and, on the other hand, calls on the Commission to ensure the transparency and interoperability of digital rights management systems.