Abstract
This final chapter will propose reforms of EU copyright law that could solve the problems emphasised in the course of this work with regard to the interests of endusers. The reform package advocated here draws upon the main idea that a legal infrastructure of user rights needs to be created in order to counterbalance the excessively broad scope of protection and excludability enabled by DRM technologies in respect of digitally protected content. The present proposal is inspired by the principle that suitable copyright law and policy should protect only rights management technologies which enable the exercise of both exclusive rights and exceptions created under copyright law. In this book, it has been emphasised that the enforcement of copyright exceptions is particularly important for the protection of the end-user’s private sphere from external interference, and for the promotion of old and new opportunities of free expression, innovation and cumulative creativity by end-users in the digital world.
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References
See Burrell and Coleman, Copyright Exceptions, op. cit., p. 276; Geiger, ‘Copyright and Free Access to Information’, op. cit., pp. 370–372.
See Burrell and Coleman, Copyright Exceptions, op.cit., p. 279.
See Senftleben, Copyright, Limitations and the Three-Step Test, op. cit., pp. 32–33 and 39–41; Geiger, ‘Copyright and Free Access to Information’, op. cit., pp. 371–372.
See Burrell and Coleman, Copyright Exceptions, op. cit., pp. 289–290; Geiger, ‘Copyright and Free Access to Information’, op. cit., p. 371. As pointed out by these authors, in the field of academic and scientific research, copying occurs at the early stage of research, when a researcher needs to collect copies of articles, extracts from books and other materials informing her or him about the current state of science.
This example is made by Geiger, ‘Copyright and Free Access to Information’, op. cit., pp. 371–372.
See Gatto, ‘Governance in the European Union: A Legal Perspective’, (12) Columbia Journal of European Law 2006, p. 487. The delegated legislative power of the Commission is justified by the fact that there are certain areas of Community policy that require regulations to be passed quickly in order to cope with changing market circumstances.
Following the provision of Article 202 of the EC Treaty, the exercise of legislative powers by the European Commission through the appointment of specific committees is now regulated by the 1999 “Comitology Decision” of the EU Council: see Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ L 184, 17 July 1999, 23. The enactment of this Decision, while replacing an equivalent Council Decision of 1987, enhanced the degree of democratic participation in this type of law-making process. Indeed, the 1999 Decision recognises to the European Parliament effective powers of information and control over the implementing measures adopted by the Commission and its advisory committees on the grounds of legislation enacted under the so-called “co-decision” procedure: see Gatto, ‘Governance in the European Union’, op. cit., pp. 500–502.
See Geiger, ‘Copyright and Free Access to Information’, op. cit., p. 372. The complete list of members of the DMP can be found at: http://www.chiariglione.org/project/members.htm.
This desirable, specific exception is not embodied in the current version of Article 5 of the InfoSoc Directive. As noted by Geiger, ‘Copyright and Free Access to Information’, op. cit., p. 371, an exception for copies made for scientific use is provided by Section 53(2)(1) of the German Copyright Act, which may be a useful source of inspiration for EU law-makers.
Similarly, Burrell and Coleman, Copyright Exceptions, op. cit., p. 280, stressed that, in any proposal for reform, “far more effort needs to be made to ensure that a greater range of interested parties are given an opportunity to shape the legislation”. If EU lawmakers should follow the option indicated in the main text, a suitable amendment to the InfoSoc Directive may create a duty for the Commission to keep its delegated lawmaking process in the field of exceptions open to as many groups of interested parties as possible. In this way, the advocated law of users’ rights would encourage the achievement of widely agreed legislative solutions. It is worth recalling here that the desirability of this policy is already acknowledged under the current, ambiguous wording of Article 6(4), which refers to “agreements between rightholders and other parties concerned” as a form of voluntary measures to be taken by copyright holders to enable uses permitted by law.
The idea of a fair use infrastructure providing a system of publicly-mandated, external mediation and trusted deposit of technical information capable of enabling certain rights of use of DRM-protected content was developed by Burk and Cohen, ‘Fair Use Infrastructure’, op. cit. The idea of external mediation, however, was developed earlier by Stefik,’ shifting the Possible: How Trusted Systems and Digital Property Rights Challenge Us To Rethink Digital Publishing’, 12(1) Berkeley Technology Law Journal 1997, p. 137, at p. 156, in the context of rights management technologies such as trusted systems: see Appendix I, §A, see infra. Stefik proposed the establishment of such a dedicated social institution as a “Digital Property Trust”, which would interact with government bodies and law enforcement agencies in making available to qualified users the legal and technical means (e.g., an arbitration system; a licensing service, etc) for the application of the fair use defence. In a similar way, Sirinelli, ‘L’étendue de l’interdiction de contourner les mesures techniques protégeant l’accès aux oeuvres et les droits d’auteurs: exceptions and limitations — Rapport Général’, in Régimes complémentaires et concurentiels au droit d’auteur, Acts of the ALAI Conference, 13–17 June 2001, New York, ALAI (USA) 2002, p. 415, spoke of “guardians of keys” for institutions which aim at disclosing the information necessary to carry out a specific exception in favour of qualified users such as schools and libraries.
See Dusollier, Droit d’auteur et protection des oeuvres dans l’univers numérique, op. cit., p. 544, who outlined that, even if the legal bans of Article 6(2) were maintained, as it seems desirable, nothing would impede law-makers or stakeholders from agreeing upon and developing circumvention-enabling technologies aimed at facilitating the exercise of copyright exceptions by qualified users such as visually-impaired people.
See Varian, ‘Economics of DRM’, op. cit.; Mazziotti, ‘Did Apple’s refusal to license [...]’, op. cit., p. 273.
Ibidem. The acronym TCP stands for “Transmission Control Protocol”, whereas IP means “Internet Protocol”. This protocol suite is the set of communication protocols which allow the Internet and most commercial networks to run. GSM stands for “Global System for Mobile communications”.
For instance, in August 2004, the online music provider Real Networks announced that it was able to reverse-engineer the encryption system and the computer code of Apple’s Fairplay DRM system in order to make Real Networks’ music downloads compatible with Apple’s iPod portable music player. After this announcement, Apple claimed that Real Networks had violated the anti-circumvention law embodied in Section 1201(1)(A) of the U.S. DMCA: see ‘Apple brings discord to Hymn’, cit., available at http://www.theregister.co.uk. This dispute, which was never brought to court, showed that U.S. anti-circumvention law applied to DRM software had the potential of frustrating interoperability at the expense of usability of digital content but also to the detriment of competition on the markets for on-line music: see Mazziotti, ‘Did Apple’s refusal to license [...]’, op. cit., p. 272.
See Cohen Jehoram, ‘Restrictions on Copyright and their Abuse’, op. cit., p. 363. In this regard, this author pointed out that Article 9(2) of the Berne Convention reads: “It shall be a matter for legislation in the countries of the Union to permit [...]”; Article 10 of the TRIPS Agreement begins by saying that “Member States shall confine [...]”; and Article 10 of the WIPO Copyright Treaty states: “Contracting Parties may, in their national legislation [...]” (emphasis added).
See Senftleben, Copyright, Limitations and the Three-Step Test, op. cit., pp. 126–127; Cohen Jehoram, ‘Restrictions on Copyright and Their Abuse’, op. cit., p. 361. The cumulative structure of the three-step test was discussed under §4.2.1., see supra.
See Koelman, ‘Fixing the Three-step Test’, (28) EIPR 2006, p. 407, at pp. 408–409.
See Koelman, ‘Fixing the Three-step Test’, op. cit., p. 410.
See Ricketson, The Berne Convention for the protection of literary and artistic works: 1886–1986, op. cit., p. 361.
This argument is made by Koelman, ‘Fixing the Three-step test’, op. cit., p. 410.
See Koelman, ‘Fixing the Three-step Test’, op. cit., p. 410.
Ibidem, pp. 411–412.
See Koelman, ‘Fixing the Three-step Test’, op. cit., pp. 411–412.
See Cohen Jehoram, ‘Restrictions on Copyright and Their Abuse’, op. cit., p. 364.
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(2008). Conclusion: towards a better EU copyright law. In: EU Digital Copyright Law and the End-User. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-75985-0_9
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