European Union Influences on the Future of Irish Copyright Law
INTRODUCTION
The Government announcement that there will be two Copyright Bills this year will, no doubt, spark renewed interest by sectoral groups and lobbyists in attempting to shape the future of Irish copyright law. However, such is the importance of copyright law in the overall international context that Ireland and, in particular those charged with drafting the forthcoming legislation, do not have carte blanche to reshape Irish copyright law. The reality is that International Treaty Law, in the shape of the GATT/TRIPs Agreement and the two 1996 Geneva Treaties, has already determined the broad shape of future Irish domestic law. Furthermore, the influence of EU legislation, in the form of the Copyright Harmonisation Directives, makes it clear that a whole variety of new rights and obligations will feature in the forthcoming Bills. It is the intention of the author to provide an outline of some of the features of the new legislation, shaped as it will be, by EU legislation. Particular attention will be paid to the most recent legislative proposal, the Proposal for a Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society of December 10th 1997. This particular proposal gives effect to some of the innovations found in the two 1996 Geneva Treaties, namely the WIPO Copyright Treaty and the WIPO Performers’ Treaty. The proposed Directive also addresses some matters that the 1996 Treaties did not and it is in regard to these issues that the Draft Directive is of greatest interest.
THE 1988 GREEN PAPER
The 1988 Green Paper, Copyright and the Challenge of Technology - Copyright Issues Requiring Immediate Action set out a list of areas where the European Commission, as a matter of priority, felt that harmonising legislation was needed. Cases like Patricia and Warner Bros -v- Christiansen had pointed up the limited role that the Treaty of Rome could play in preventing divergent national copyright laws from having the effect of fragmenting the European market for information and entertainment products. Further, the need for up-to-date legislation in Europe to meet both the challenge of technology and widespread piracy of copyright works set in train a remarkable legislative process.
The 1988 Green Paper spawned five important Directives.
1. The Computer Programs Directive (1991)
This recognised computer programs as literary works, set out a broad range of restricted acts and a number of exceptions thereto. On key issues such as the use of existing programs to produce derivative products, the Directive is deliberately vague. This Directive was transposed into Irish law by SI No. 26 of 1993.
2. The Rental and Lending Directive (1992)
This Directive has two distinct purposes. Firstly, "new" acts of exploitation, the rental of products such as videos and computer games, is made a restricted act, as is public lending of works. The Directive is intended to allow rightholders to be able to share in these new methods of commercialisation. It also broadens the scope of those persons entitled to participate in this process. The second part of the Directive enfranchises performers to share in copyrights and broadens the rights of broadcast organisations, film producers and record companies in several significant respects (e.g. by the provision of a distribution right).
3. The Cable and Satellite Directive (1993)
This Directive deals with choice of law issues in relation to copyright clearance issues in the field of broadcasting and in several respects is to be read with the 1992 Rental and Lending Directive. However, like the 1992 Directive, this Directive has not been transposed, even though the due date has long since gone.
4. The Term Directive (1993)
Inspired, in part, by the Patricia litigation, the EU determined to create a harmonised system of copyright duration. However, the decision to harmonise up (i.e. provide copyright protection for works over a longer, rather than a shorter, period) has been widely criticised. This is the other Directive that has been transposed into Irish law, in this case by SI No. 158 of 1995.
5. The Database Directive (1996)
Last, but not least, the Database Directive provides copyright protection for compilations of works and/or data, providing an author’s own intellectual creation test is satisfied. This is a welcome measure that makes it clear that electronically held databases are copyright protected. However, the Directive goes further in protecting the investment in a database from being dissipated through unauthorised extraction or reutilisation of the contents of the database by way of a separate, 15 year protection in the form of an unfair competition right. Again, Ireland has missed the transposition date.
COMMENT
This first generation set of laws is an impressive achievement, even if many matters of detail are unfortunately expressed. The European Commission, however, failed to make progress on a number of other key areas in its programme; issues such as private copying and reprography, (i.e. photocopying) tape levies and moral rights proved too intractable. However, a proposal on artists’ resale rights - droit de suite - is still chugging through the legislative process. While some of the provisions in the Commission’s list of achievements are also found in the TRIPs (e.g. computer programme and database compilation protection), the first generation legislation set out in these five Directives was (and is) extremely influential in shaping the future of International copyright law.
THE 1996 GENEVA TREATIES
Prior to the convening of the Diplomatic Conference in Geneva, held between December 2nd and 20th, 1996, three draft treaties were on the table. These documents promised to reshape traditional copyright laws, so as to deal with the Digital Age, and to make further progress in the post-TRIPs international arena - to provide new international copyright and neighbouring right standards. Two of these three draft treaties, the so called "Protocol to Berne" and the "New Instrument", have been around for several years in various forms, but the third document, dealing with sui generis protection for databases and modelled on the EU Database Directive (96/9/EC), came into the picture at a late stage. The Database Treaty was not agreed, but renewed efforts will be made in 1997 and beyond to conclude this treaty as well.
The First Treaty
This Treaty, based on the earlier Protocol to Berne drafts, has the status of being a special treaty under Article 20 of Berne. It addresses the classical literary and artistic work copyrights, which are mapped out in the 1971 Paris Act of Berne, and also shadows some of the provisions of the TRIPs Agreement. For instance, a declaratory provision states that copyright applies to matters of expression, not ideas, procedures, methods of operation, or mathematical concepts as such. Irish statute law does not have a statement of this kind. Computer programs of all kinds in any form are declared to be protected as literary works.
Although no agreement was reached on the provision of a sui generis right for the database, the protection accorded by TRIPs is repeated in the Treaty, covering compilations of data or other material, when original by virtue of selection or arrangement.
Irish law protects compilations of literary works but there is no statutory guidance on compilations of works other than literary work, so implementation on this point will be helpful to Irish lawyers. However, the originality standard set - is the compilation an "intellectual creation"? - may import Feist -type reasoning into this area, thereby taking some compilations out of the copyright area.
The Treaty gives some new rights unknown to Irish law. Authors are given a distribution right, by way of sale or other transfer of ownership, and authors of computer programs, phonograms and cinematographic works are given rental rights (which are heavily qualified). Of course, the Rental and Lending Right Directive (which is yet to be implemented in Ireland) goes much further than this in any event.
Clarification of Internet-type issues is also given in some areas. For instance, authors are given the right to authorise communication of the works to the public by wire or wireless means, including user-driven selection like digital diffusion of music, or video-on-demand type services.
Member States of the Berne Union are also to provide measures to prevent technological protection schemes (e.g. anti-copying devices) from being circumvented, and electronic rights management systems (e.g. "tattooing" of works to verify use) are also to be legally protected against tampering.
Conference Failures
One of the most important provisions in the draft protocol - the scope of the reproduction right - failed to be agreed upon because of differences on temporary or ephemeral reproduction in a telecommunications network. This is unfortunate, for there is no international treaty provision which makes it clear that a digital representation of a work is actually a "reproduction" of that work. The conference tried to overcome this via a declaration, namely:
"Contracting parties confirm that the reproduction right, as set out in Article 9 of the Berne Convention, and the exceptions permitted thereunder, fully apply to 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."
Whether this declaration is worth anything is a matter of some conjecture.
Less surprising was the failure to agree an exhaustion of rights rule. Is a resale right (or parallel importation) blocked by first sale anywhere in the world, or in one jurisdiction? The Treaty, in fact, declares this issue to be one of national law competence. Ireland, of course, is bound by the EU exhaustion of rights rule.
The Second Treaty
This Treaty, the so called ‘New Instrument’, shadows aspects of the Rome Convention of Performers, Phonogram Producers and Broadcast Organisations (1961), aspects of TRIPs, and also some EU provisions such as the Rental and Lending Right Directive (92/100/EC). Some of the most important changes are to the definitions that are found in international treaty provisions such as the Rome Convention. Performers, for example, are now to include performers of folklore.
The Treaty sets out a basic rule requiring national treatment to be afforded to nationals of contracting parties, with one exception. Persons covered by this rule are performers and phonograms producers.
The most visible provision in the entire Treaty is the provision of moral rights to performers in relation to live aural performances or performances fixed in phonograms. Performers of dramatic works - actors - are not given this right. The moral rights in question are based on Berne, Article 6 bis; thus, they are rights to be identified as the performer and a right not to have a performance distorted or mutilated if the effect would be to prejudice the reputation of the performer.
Performers in relation to aural performances fixed on a record are given the exclusive right of authorising broadcasting and communication to the public of live performances and the fixation of unfixed performances. This is welcome, long overdue, and will, in part, supersede the inadequate protections given in the Performers Protection Act, 1968. The Treaty also gives all performers exclusive rights of authorising direct or indirect reproduction of their performances which are fixed in phonograms, a provision which applies to digital reproduction, for instance. Performers are also given limited distribution and rental rights, but it should be noted that these rights are selective, applying, by and large, to musical performers only. The rights given in the EU Rental and Lending Right Directive to performers, phonogram producers and broadcast organisations are much more extensive. The limited scope of the Treaty provisions reflects the power and influence of the USA record and film industries.
This Treaty also provides phonogram producers with reproduction, distribution, rental and communication to the public rights, and performers and phonogram producers are given equitable remuneration rights for broadcasting and communication to the public uses.
THE ACQUIS COMMUNAUTAIRE
The first generation copyright legislation promoted by the European Commission has been conceptualised by the European Commission itself as a body of policies, principles, rules and key concepts that the Commission describes as the acquis communautaire , or the acquis’ . The acquis seems destined to continue to shape future legislative initiatives from the European Commission. The acquis has a number of features, which, for the sake of ease of analysis, the present writer seeks to classify in four ways.
1. Responsiveness to Technological Innovation
The first Directive, the Computer Programs Directive, reflects the Community concern with protecting innovation effectively. Forcing copyright law onto software represented an exercise analogous to forcing a square peg into a round hole: many earlier commentators objected on the grounds that design protection for functional devices was more appropriate but this argument was lost due to the ineffectiveness of that route as a method of protecting European software producers in an international context. The Commission’s belated amendment of the Directive in relation to interoperability signalled also a pragmatic solution to various interest groups, allowing users and smaller bespoke software producers to function, despite the objections of the larger multinationals within the industry. Conversely, the Commission, at times, has been too innovative. The Database Directive, for example, was, quite late in the day, amended to cover even paper databases, the Commission’s haste to protect the electronic sector leaving the initial proposal open to the charge that traditional databases were, by implication, outside copyright law! Further illustrations of the Commission’s willingness to create the right climate for innovation include the broadening of concepts such as a distribution right to apply to video-on-demand technologies, although, as we shall see, the new proposed Directive, the first of the second generation legislative initiatives, picks up this particular torch in such a way as to make some of the early legislation look somewhat out of date.
2. The Broadening of Rights
The acquis has had a significant impact on the way in which copyrights are viewed. While the Community Directives, in part, shadow the Berne Convention, for instance, he concept of a distribution right is an implicit part of the reproduction right in Article 9 of Berne, the Directives have consistently extended the scope of the "restricted acts" that constitute the essence of copyright itself. The Computer Programme Directive set the tone by making the commercial rental of computer programs an exclusive right that the rightholder enjoyed, first sale not exhausting this right - Article 4(c) of the Directive. The Rental and Lending Right Directive added to this trend by making the commercial rental of all works an activity that the rightholders could regulate. The possibility of affording authors of works an income in the form of a public lending right, also found in the 1992 Directive, is also a significant advance. Furthermore, the technical adjustment of terms of definition by the various instruments is a remarkable achievement. The concept of reproduction in the Computer Programs Directive covers permanent or temporary reproduction; "loading, displaying and running" a programme are within this restricted act, and the fact that the acquis contains a definition of this concept, in such a context, has proved influential in shaping the later Directives, particularly the Database Directive. The Computer Programs Directive, by introducing a specific distribution right (commercial rental being only one feature of that distribution right) set down a marker for later instruments and future technical developments, thus signalling the broadening of the acquis itself. Some developments, however, are extremely pragmatic. For example, the 15 year sui generis right in the Database Directive is borrowed from Scandinavian law. This right is not described as a neighbouring right, much less a copyright. Critics argue that this kind of provision, an unfair competition provision, is a protectionist measure that creates rights in prosaic factual data. This may be so, but the European Commission’s role is to act as a body that protects the economic interests of the European Community - see recitals 6 to 9 of the Database Directive - and not just a body charged with defending the doctrinal purity of European copyright law.
3. Redefining Rightholders
The most striking feature of the acquis, in this particular context, is the way in which the Commission has championed the interests of authors, performers and entrepreneurs by extending copyrights in the Rental and Lending Right Directive. Performers, phonogram producers, broadcasters and film producers all benefit by acquiring copyrights in the form of exclusive rights and, in some cases, unwaivable rights to equitable remuneration. These bold steps contrast with the snail-like advances for performers being made on the wider international stage. By giving the entrepreneurial and the interpretative sectors of the artistic community a genuine stake in the fruits of their work, the European Commission, particularly in the 1988 Green Paper, expressed the view that greater incentives to protect works from piracy would be created. The European Commission, acting with the European Parliament, at least in the film sector, by redefining the author of a film as including the principal director, at least, and the Term Directive takes up a similar theme by adjusting the rules for measuring the duration of film copyright protection by reference to the lives of human persons who play an important role in creating a film, namely the principal director, author of the screenplay, the author of the dialogue, and the composer of the music specifically created for the film. The role of the Commission in sponsoring the cultural dimension of the European Community is also a factor in the acquis: witness the Rental and Lending Right Directive Article 5 on public lending and the whole thrust of the droit de suite proposal.
4. The Balancing of Rights
The Community instruments are structured in such a way as to balance conflicting interests. The concept of the lawful acquirer/user in the Computer Programs Directive, and the fair use provisions therein, balance some other interests with those of the rightholder; the decompilation provision in Article 6 of the Computer Programs Directive is an ingeniously constructed piece of gibberish to ward off the possibility of anti-competitive practices being sustained by a rightholder. Even the Rental and Lending Right Directive attempts to balance the rights of performers with the entrepreneur, particularly in the film sector, so much so that the Commission has, rightly, been accused of allowing the presumptions and the possibility of contracting out, to have destructive consequences. There is some evidence that the acquis is uncertain on one important issue: the employment provision in Article 2(3) of the Computer Programs Directive, criticised by many civilian commentators, did not appear as a mandatory provision in the Database Directive because of hostility in many circles to a work for hire doctrine taking root in civilian copyright systems.
THE 1995 GREEN PAPER
The July 1995 European Commission Green Paper, Copyright and Related Rights in the Information Society addressed a number of copyright and legal protection issues, indicating that the first generation legislation had not only failed to address all matters of concern to European rightholders, but that the legislation had provided a context within which further legal regulatory measures were demanded by interested parties. Internal Community policies such as the Bangemann Report , technical developments such as the Internet and the multimedia explosion, and the international climate for new legislative interventions created by the TRIPs Agreement and the (then forthcoming) December 1996 Geneva Conference, made legislation in the copyright arena a pressing issue for the European Commission. The 1995 Green Paper focused on a number of topics. Part II of the Green Paper addressed a number of specific rights. These issues were the reproduction right, with special attention being drawn to the digital reproduction, the communication of works to the public as a new right, possible legislation addressing the digital dissemination or transmission right, the utility of a digital broadcasting right and moral rights. Part III of the Green Paper addressed issues of acquisition of rights and rights management. Parts II and III of the Green Paper have, broadly speaking, remained the focus of the Proposed Directive. The Commission has decided not to address the question of applicable law in this Draft Directive, one of two issues identified as problematical in Part I of the Green Paper, nor does the Directive change or adjust the Community exhaustion rules. It is expected that a DG XV Green Paper on electronic commerce, due later this year, will address the issue of applicable law.
The Green Paper was followed by a process of consultation with interested parties and the receipt of written submissions. A two day hearing took place in January 1996. The effect of these submissions and presentations on the shape of the Proposed Directive was extremely significant, as the Follow Up to the Green Paper makes clear. While several responses led the Commission to drop some of the topics set out in Part II of the Green Paper (e.g. digital broadcasting, moral right), the follow up document, published on 20th November 1996, was not itself the final word on the Proposed Directive. The two Geneva Treaties, the Green Paper and Follow Up Document, as well as the acquis, together form the basis for the December 1997 Proposed Directive, to which we now turn.
THE HARMONISATION DRAFT DIRECTIVE
The Directive, in initial draft form, consists of 13 Articles and four Chapters. Chapter I sets out the object and scope of the Draft Directive. Chapter II is headed rights and exceptions. Chapter III addresses the Protection of Technological Measures and Rights Management Information, while Chapter IV sets out common provisions.
The New Rights
Article 1 makes it clear that the subject matter of the Draft Directive is the legal protection of copyright and related rights, with particular emphasis on the information society. Recitals 1 to 12 to the Draft Directive set out the technical and international legal context within which the Directive is to function and recital 13, in particular, is reaffirmed in Article 11 to make it clear that the Draft Directive is to operate without prejudice to the five concluded copyright Directives, "unless otherwise provided" . In fact, the only amendments related to the Rental and Lending Right Directive and the Term Directive. Article 10 of the Draft Directive deletes Articles 7 and 10(3) of the Rental and Lending Right Directive to bring aspects of the reproduction right, addressed in the 1992 Directive, into line with Article 2 of the Draft Directive and Articles 10 and 16 of the 1996 WIPO Performers Treaty. In relation to the Term Directive, Article 10 of the Draft Directive changes the rules relating to expiry of copyright in a sound recording when, following within 50 years of fixation, the sound recording is first published. Under the new provision, the only event that extends the duration of the copyright is first publication - communication to the public will not, under the revised provision, also extend the duration of protection. This change is due to Article 17 of the WIPO Performers Treaty.
Article 2 of the Draft Directive provides the five central players in the traditional copyright arena with exclusive rights to authorise or prohibit reproduction of their (i) works, (ii) fixations of their performances, (iii) phonograms, (iv) first fixation of films and, (v) broadcasts. With the exception of performers, who enjoy no copyright under the Performers Protection Act 1968, these rights are familiar under the 1963 Act. What is new is the scope of the reproduction right - the right covers "direct or indirect [reproduction], temporary or permanent reproduction by any means and in any form, in whole or in part." This is a sweeping statement, built upon the acquis in the form of the Computer Programs and Database Directives. The definition of the right is as comprehensive as it could possibly be, thus making it clear that recording of a work or a broadcast, at a distance, for ephemeral purposes, in immaterial form (i.e. downloading a work, broadcast etc. onto a hard disk) is an infringement of the reproduction right. The immaterial version will be a copy or reproduction for the purpose of the Draft Directive.
Article 3 addresses the right of communication to the public. Again, the five protected groups obtain exclusive rights, although the treatment afforded within Article 3 is slightly different. Article 3(1) addresses the rights of an author to communicate to the public the original or copies of a work. While Article 3 is clearly intended to address on-line or off-line distribution of works (e.g. Internet distribution or cable or satellite access to films via subscriber services) when, for example a number of unrelated users are simultaneously accessing a work or site where the work is located. These persons will be obtaining access to a transmission via a screen display which, at least, vis-a-vis the public, may not involve an act of reproduction. Article 3 does not address the issue of distribution of physical copies, rather it is directed at access or content providers who seek to utilise a work within the context of a publicly accessible service. The definition of public is to be left for national legislation but it is clear that a person using remote access facilities, "on demand", would be a member of "the public". Broadcast and private user communications (e.g. a private telephone conversation in which a copyright love poem is recited by one person to another) are not caught by Article 3(1). Article 3(1) is modelled on Article 8 of the WIPO Copyright Treaty.
Article 3(2) addresses the rights of the other four classes of rightholder covered by the acquis, namely performers, phonogram producers, film producers and broadcast organisations. Article 3(2) affords to these persons exclusive rights of authorising or prohibiting the communication to the public of their copyright materials in immaterial form. However, the Draft Directive goes further than the WIPO Performers Treaty by making these rights available in respect of audiovisual material as well as sound recordings. This is consistent with the acquis, which does not distinguish between various categories of "content". Article 3(3) addresses the issue of exhaustion of rights and reaffirms the view that the exhaustion principle operates only in respect of the provision of goods. Because the provisions of Article 3 address immaterial transmissions (even if the recipient makes a hard copy), it is the service that Article 3 regulates, thus the exhaustion rule does not apply.
The distribution right, identified in Article 4(1) is unknown to exist in Irish copyright law. This right has already surfaced in respect of neighbouring rights in the Rental and Lending Right Directive but Article 4 of the Draft Directive goes further in providing this right to authors also. This provision was present in Article 6(1) of the WIPO Copyright Treaty. This WIPO Copyright Treaty article is the corollary of article 3, insofar as Article 4 addresses material distribution of originals and copies. This right clearly addresses the commercial rental or public lending of works but it can, it is submitted, go further. This article may introduce an exhibition right; the creator of an artwork is, arguably, given the right to control acts of distribution, and it is clear that because an original work is within this category of work, the distribution right may be involved. All the 1963 Act states is that exhibition of a work is not publication - Section 3(2); because distribution is not addressed by the 1963 Act as a restricted act, the scope of this somewhat uncertain right may need to be explored as the Draft Directive progresses to see if this result is intended.
Article 4(2) reflects the failure of the international community to agree at Geneva on the question of national -v- international exhaustion; so third countries dealing with EU States will be subject to a national exhaustion principle, even though some EU States (e.g. Germany) operate international exhaustion rules. The Directive will prohibit such treatment in future and EU States will not be entitled to operate international exhaustion principles.
Fair Use Exceptions in the Draft Directive
Exceptions to the reproduction, communication to the public, and distribution rights are provided for in Article 5. Irish law, in the form of Sections 12 and 14 of the 1963 Act, sets out general fair dealing provisions and a motley collection of ad hoc exceptions occur at various stages in the 1963 Act. Some of these (for example, the Section 53 educational use provision) can be said to be unworkable museum pieces. The Berne Convention and the WIPO Treaties shy away from any detailed consideration of when exceptions are permissible and, in some respects, Article 5 of the Draft Directive is the most interesting provision because of the structure it imposes on Member States.
Article 5(1) is directed at clearing the way for temporary acts of reproduction that occur in order to facilitate the use of a work or protected subject matter. Typically, this will authorise various acts of reproduction while a work is within a network, en route to the lawful users. Article 5(1) stands alongside the provisions of the Computer Programs Directive and the Database Directive, although the "no independent economic significance" test is new. Obviously, the precise significance of this exception will be central to broadcast organisations, and others, who may fear that this exception could be used to create a virtually simultaneous broadcast facility by a user, for example. Perhaps the article could have been more tightly drafted so as to operate only in relation to ephemeral reproduction within a network and/or a private user context. As it stands, the Article 5(4) three step test is intended as a long-stop, preventing the looseness of Article 5(1) from making the provision a pirate’s charter. It is likely that Article 5(1) will undergo exploratory surgery and then radical reshaping before it will be acceptable to a wide range of interests. Article 5(2) is an extremely complex provision that repays very careful scrutiny.
Firstly, note that the only right that can be relaxed under Article 5(2) is the reproduction right. Article 5(2) does not permit any easing of the distribution right, for example. Nor does Article 5(3), although, the Rental and Lending Right Directive will govern the distribution right vis-a-vis most acts of distribution. The permissive list in Article 5(2) is exhaustive and, at first sight, pushes out the boundaries of fair dealing quite extensively. However, recital 27, in particular, implies that the private copying exceptions should be amenable to rights management developments. So, the licensing activities of the Irish Copyright Licensing Agency could still function - licensing fees could be demanded from persons engaged in reprography, for instance, and, although it must be conceded that Article 5(2)(a) does not so stipulate, the Explanatory Memorandum on page 29 - 30 is clear on this point. The private copying provision in Article 5(2)(b) is similarly open to the possibility of levies being imposed on either recording equipment or recording material such as blank tapes. Ireland does not operate such a system and, under the Directive, Ireland does not have to introduce any such system. However, many interested groups, such as performers and the film and record industry, have exhibited varying degrees of enthusiasm for levies. It is also worth noting that the Commission thought it premature to distinguish between analog and digital copying, notwithstanding the debate in the 1995 Green Paper, and elsewhere. Article 5(2)(b) also eases the reproduction right for institutions such as public libraries. While it is not immediately clear what this adds to 5(2)(a) and (b), it would appear to allow a library to scan material, or add material, onto some kind of audiovisual information network as a public information service or create an electronic database for use by members of the public, for example. What a library cannot do under Article 5(2)(c) is distribute material in the form of on-line communication to the public or the physical distribution of copies of scientific or other material via a hard copy-on-demand service. Licensing of such acts of distribution and communication will be the dominant model for existing fair dealing case law makes it clear that "parasitic" reproduction of material will not be fair, nor, in any event will it satisfy the three step test in Article 5(4).
The explanatory memorandum accompanying the Directive is extremely clear on this point and it should be noted that the other fair dealing exceptions in Article 5(3) provide additional exceptions in respect of both the reproduction right and the (immaterial) communication to the public right, but that material distribution in Article 4 is not addressed in Article 5(3).
Turning now to the provisions in Article 5(3), we can see that the language is somewhat familiar to anyone who has looked at Section 12 of the Copyright Act 1963. However, there are some significant changes to fair dealing in the pipeline if Article 5(3) remains intact. The "teaching or scientific research" provision in paragraph (a) has, as its existing counterpart, section 12(1)(a), research or private study, and sections 12(5) and 53, which relate to use in schools. While the proposed exemption is broader insofar as it is technology neutral, and it covers use of protected works that sections 12 and 14 do not address, (for example it covers use of film, sound recordings, broadcasts etc. as well as literary and artistic works) the proposed charge is limited. The sole purpose must be illustration for teaching or scientific research. This can include use in a compilation but not only does the compilation have to be non-commercial in nature, it must also leave open the possibility that a Member State may still impose a remuneration right. Under the existing law, a person who comes within either Section 12(1)(a) or 12(5), for example, does not infringe copyright and no charge is possible. While the Draft Directive does allow teachers to load works and protected material onto an on-line database for pure teaching purpose, the potential economic impact of such an activity - distance learning, for example, could become a significant revenue source for universities if such courses are not so already - and the Explanatory Memorandum hints, darkly, that...
"Member States will have to take due account of the significant economic impact such an exemption may have when being applied to the new electronic environment. This implies that the scope of application may have to be even more limited than with respect to the "traditional environment" when it comes to certain new uses of works and other subject matter."
In short, anyone who thinks that this exception would legitimise the "free" copying of protected works by a teacher or scientist simpliciter would be very wrong (and very liable to a rightholder).
The other exceptions in Article 5(3) are also familiar but are not so tightly drawn as Article 5(3)(a) in the Proposed Directive because the Commission views these exceptions as having broader societal and cultural purposes that do not have a significant economic impact. In any event, all of these provisions are subject to the "three step" test in Article 5(4). This test is already part of international treaty law and is found in Irish law in SI No. 26 of 1993, the Computer Programs Regulations. The provisions in Articles 6 and 7 overlap substantially with provisions in the two Geneva Treaties. However, these provisions in the Draft Directive also address preparatory acts towards avoiding anti-copying technologies and also inserts into the technological measures provision a mens rea requirement. Fears had been expressed that the law could otherwise make innocent possession of computer hardware or software that can be used in breach of Article 6 problematical, even if there was no intention to (mis)use in such a way.
CONCLUSION
While many of the provisions in the Draft Directive will, in all probability, find their way into the forthcoming Copyright and Related Rights Bill 1998, not least because these rights, in substance, are already contained in the Geneva Treaties or are a part of the acquis, the provisions in Article 5 will need to be considered very carefully. In some respects, these provisions actually reduce the scope of existing fair dealing defences or they indicate a switch in emphasis away from the idea that a fair dealing provision does not allow the rightholder any rights to complain about the use at all. In fact, the emphasis placed upon the licensing possibilities by the Explanatory Memorandum means that many of the provisions in Article 5 are essentially provisions that mean that a rightholder cannot object to an Article 5 use but the rightholder is entitled to impose a charge for this use: these fair dealing provisions, therefore, look more like a compulsory licence than a classical infringement defence. It is expected that, on this point, there will be substantial pressure, from many directions, to make changes as the Draft Directive progresses towards a Common Position. Given that the Database Directive took from May 13th, 1992 to March 11th 1996 to complete such a journey, the draftsmen of the new Bill may be excused if they hedge their bets by not adopting Article 5 of the Draft Directive just yet.
© ROBERT CLARK 1998
