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____/ 7 on Wednesday 21 January 2009 19:55 : \____
>
>
> Roy Schestowitz wrote:
>
>> -----BEGIN PGP SIGNED MESSAGE-----
>> Hash: SHA1
>>
>> Does ACTA Secrecy Violate European Law?
>>
>> ,----[ Quote ]
>> | One of the most problematic aspects of the negotiations around ACTA, the
>> | Anti-Counterfeiting Trade Agreement, is how the entire process has been
>> | shrouded in secrecy. Those involved in the process try to brush off this
>> | complaint by saying something along the lines of "but we always
>> | negotiate treaties this way!" but that's hardly a good reason to do so
>> | -- especially when the impact of ACTA could be wide ranging.
>> `----
>>
>> http://techdirt.com/articles/20090114/1056313412.shtml
>
>
> If acta did not consult widely, the politicians have a right to count
> their collective opinion as just 1 vote. There is legal precedent for that.
>
> So much for acta crap.
>
> Even if they did consult widely, they have better get some signatures
> and agreement that the subject being signed on is understood by the person
> signing it.
>
> Until then, acta can go fsck itself.
I've extracted the text (manually) from a relevant doc (watch the bits down at
the bottom... disgusting):
____
EUROPEAN PARLIAMENT
2004 - 2009
Committee on Legal Affairs
2008/2121(INI)
14.10.2008
DRAFT REPORT
on the Commission report on the application of Directive 2001/29/EC on the
harmonisation of certain aspects of copyright and related rights in the
information society (2008/2121(INI))
Committee on Legal Affairs
Rapporteur: Manuel Medina Ortega
PR\744876EN.doc
PE413.997v01-00
EN
EN
PR_INI
CONTENTS
Page
MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION …………………………. 3
EXPLANATORY STATEMENT………………………………………………. 8
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MOTION FOR A EUROPEAN PARLIAMENT RESOLUTION
on the Commission report on the application of Directive 2001/29/EC on the
harmonisation of certain aspects of copyright and related rights in the
information society
(2008/2121(INI))
The European Parliament,
– having regard to Articles 14 and 95 of the EC Treaty,
– having regard to Article 27 of the United Nations Universal Declaration of
Human Rights,
– having regard to Article 17, paragraph 2, of the European Union Charter of
Fundamental Rights,
– having regard to the Commission report of 30 November 2007 on the application
of Directive 2001/29/EC on the harmonisation of certain aspects of copyright
and related rights in the information society (SEC(2007)1556),
– having regard to the Commission Green Paper of 16 July 2008 on copyright in
the knowledge economy (COM(2008)0466),
– having regard to Directive 2001/29/EC of the European Parliament and of the
Council of 22 May 2001 on the harmonisation of certain aspects of copyright
and related rights in the information society1,
– having regard to Directive 2004/48/EC of the European Parliament and of the
Council of 29 April 2004 on the enforcement of intellectual property rights2
and to the Commission statement on Article 2 of. Directive 2004/48/EC
(2005/295/EC),
– having regard to its resolution of 25 September 2008 on collective
cross-border management of copyright and related rights for legitimate online
music services3,
– having regard to its resolution of 15 January 2004 on a Community framework
for collective management societies in the field of copyright and neighbouring
rights4,
– having regard to the Commission Recommendation of 18 October 2005 on
collective cross-border management of copyright and related rights for
legitimate online music services (2005/737/EC),
– having regard to the Commission Communication of 16 April 2004 on the
management of copyright and related rights in the internal market (COM(2004
0261),
____________________________
1 OJ L 167, 22.6.2001, p. 10.
2 OJ L 195, 2.6.2004, p. 16.
3 Texts adopted of that date P6_TA(2008)0462.
4 OJ C 92 E, 16.4.2004, p. 425.
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– having regard to Directive 96/9/EC of the European Parliament and of the
Council of 11 March 1996 on the legal protection of databases1,
– having regard to Directive 2006/116/EC of the European Parliament and of the
Council of 12 December 2006 on the term of protection of copyright and certain
related rights2,
– having regard to its resolution of 27 September 2007 entitled ‘2010: towards
a European digital library’3,
– having regard to Rule 45 of its Rules of Procedure,
– having regard to the report of the Committee on Legal Affairs and the
opinions of the Committee on Industry, Research and Energy and the Committee
on the Internal Market and Consumer Protection (A6-0000/2008),
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;
6. Wonders about the reasons for having the Commission Green Paper concentrate
almost solely on the world of publishing, forgetting the other cultural
industries;
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
____________________________
1 OJ L 77, 27.3.1996, p. 20.
2 OJ L 372, 27.12.2006, p. 12.
3 OJ C 219 E, 28.8.2008, p. 296.
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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;
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
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applied scientific research in the case of distance learning;
24. Wishes the scientific community and researchers to enter into
licence-issuing schemes with publishers in order to improve access to works
for purposes of teaching and research;
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;
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;
30. Takes the view that the activity of websites offering downloading of works
and services that are protected by copyright and neighbouring rights is
illegal, as is peer-to-peer exchange of works or services without the consent
of the rightholders;
31. Supports the setting up in the individual Member States of administrative
authorities responsible, 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 use of work identification and recognition technologies 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
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38. Calls for the legal supply of works on the internet to be developed, for
example by lowering VAT on digital services;
0
0 0
39. Instructs its President to forward this resolution to the Council and
Commission.
EN
EXPLANATORY STATEMENT
I. Copyright and related rights in the information society
Protection of copyright and related rights in the information society forms an
important part of the development of economic life in the single market.
Copyright traditionally gives the author two major economic rights: the right
of reproduction and the right of making available to the public.
The information society has opened up new markets in which protected works can
be exploited through the media of electronic products and interactive
services.
In this context, protection of copyright is one of the necessary conditions for
stimulating creativity and innovation and promoting different cultural
identities.
Copyright is not only an ex-post reward for authors’ work, but also a way of
encouraging them to create more. This incentive aspect is even more important
for producers and distributors.
Rightholders must therefore have the chance to benefit from the protection
afforded by copyright and related rights where these rights are established,
regardless of national frontiers and modes of use, throughout their entire
period of validity.
Piracy in the information society is an obstacle to the exercise of a creative
activity which should be financially profitable.
It must be borne in mind that information property has an atypical cost
structure in which the bulk of the costs lie in its design and production.
The nature of copyright must not be allowed to change as a result of
technological progress
The fight against piracy must take place on a number of fronts: education and
prevention, development of accessibility to the legal digital market,
cooperation and legal sanctions. It is now necessary to strike a balance
between the legitimate interests of authors and the interests of the public
and society, in the light of Article 27 of the United Nations Universal
Declaration of Human Rights, which stipulates that: ‘(1) Everyone has the
right freely to participate in the cultural life of the community, to enjoy
the arts and to share in scientific advancement and its benefits. (2) Everyone
has the right to the protection of the moral and material interests resulting
from any scientific, literary or artistic production of which he is the
author’.
Directive 2001/29 EC on the harmonisation of certain aspects of copyright and
related rights in the information society has a threefold objective:
– to reaffirm the rights of authors and holders of related rights while taking
into account the specificities of digital media,
– to define the regime of exceptions to these rights,
– to provide legal protection for the technical measures attached to works and
services in order to prevent unauthorised acts by rightholders.
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The directive is a logical extension of the 1996 World Intellectual Property
Organisation (WIPO) Copyright and Performances and Phonograms Treaties.
The Directive leaves the Member States a great deal of leeway in deciding how
it should be transposed, sometimes creating legal uncertainty within
individual Member States and disparities between the Member States because of
the optional nature of many of the provisions, which leaves the Member States
free to adopt ‘à la carte’ many exceptions to the rights laid down, and
because the Member States are given the task, sometimes in vague terms, of
implementing legal protection.
II. Basis on which to assess the application of Directive 2001/29 EC
The Commission report on the application of Directive 2001/29/EC on the
harmonisation of certain aspects of copyright and related rights in the
information society (SEC 2007/1556) considers the transposition by the Member
States and the application by the national judge of Articles 5 (exceptions and
limitations), 6 (protection of technological measures and rights management
information) and 8 (sanctions and remedies) of the directive.
The arrangements for exceptions, their application and practical transposition
– Article 5 of the directive sets out a compulsory exception (paragraph 1) and
optional exceptions to the right of reproduction only (paragraph 2) and the
rights of reproduction, communication to the public and making available to
the public (paragraph 3), with these optional exceptions also able to be
extended to the right of distribution (paragraph 4).
– Paragraph 5 makes all the exceptions to, and limitations of, the various
rights set out in the directive subject to the ‘triple test’ rule: that is to
say that they may ‘only be applied in certain special cases which do not
conflict with a normal exploitation of the work or other subject-matter and do
not unreasonably prejudice the legitimate interests of the rightholder’.
This ‘triple test’ has its origins in Article 9.2 of the Berne Convention for
the Protection of Literary and Artistic Works and Article 10 of the 1996 WIPO
Treaties.
Article 5.1 provides for an exception in respect of temporary acts of
reproduction which are transient or incidental and form an integral and
essential part of a technological process. Article 2 of the directive sets out
the right of reproduction in the broadest possible terms, but in the digital
environment reproductions are numerous and often ephemeral. They are
nevertheless covered by the exclusive right, which is the reason why
reproduction such as that required by certain means of communication is deemed
to be an exception, the only compulsory one in the directive (Article 5.1).
With the Google-Copiepresse judgment of 13 February 2007, on the other hand,
the Belgian judge ruled that a copy of a webpage memorised by the Google
server and the existence of a link giving public access to the same webpage
contravene the rights of reproduction and communication to the public.
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All the Member States except the United Kingdom and Ireland have transposed, in
a variety of different ways, the exception in respect of reproductions for
private use set out in Article 5.2.b. In addition, the Belgian and French
courts have ruled that it is not a right that is always applicable (Test
Achats v. EMI, Brussels Court of Appeal 9/92005 and Studio Canal v S. Perquin
et Union fédérale des consommateurs Que Choisir Paris Court of Cassation,
28/2/2006).
The exception provided for in Article 5.2.c in respect of specific acts of
reproduction made by libraries or other bodies which are not for commercial
advantage is not unlimited. It is restricted to specific cases such as
reproduction that is necessary for the preservation of works contained in
library catalogues. Publishers, for example, think they can give prior
authorisation for a book to be scanned, as in the appeal against Google
brought on 6 June 2006 before the Paris Court of First Instance by the La
Martinière Group and others.
It goes without saying that the phenomenon of works being put on line by
digital libraries can be very damaging to copyright holders.
The exception in respect of the press set out in Article 5.3.c in order to
reflect current developments has been interpreted very broadly by some Member
States, but in the Copiepresse v. Google judgment the Belgian judge took the
view that Google’s reproduction without comment of parts of articles was not
covered by this exception. The same judgement does not consider the exception
in respect of quotations for purposes such as criticism or review provided for
in Article 5.3.d to be applicable to the Google.News service.
The exception provided for in Article 5.3.k in respect of use for the purpose
of caricature, parody or pastiche has been transposed in widely differing ways
into national legislation: it has not been included by the United Kingdom, for
example, and is strictly regulated in Germany in accordance with the case law
of the Hamburg Regional Court in its ‘thumbnails’ decision of 5 September
2003.
Protection of technical measures
Article 6 of the Directive requires the Member States to provide adequate legal
protection against the circumvention of any effective technological measures
(TPM technological protection measures) and against distribution of devices
for such circumvention. Article 6, paragraph 3, defines ‘technical measures’
as ‘any technology, device or component that, in the normal course of its
operation, is designed to prevent or restrict acts, in respect of works or
other subject matter, which are not authorised by the rightholder of any
copyright or any right related to copyright as provided for by law or the sui
generis right provided for in Chapter III of Directive 96/9/EC’.
In the United Kingdom, the 2005 High Court’s Sony Computer Entertainment v Ball
judgment established that, for a technical protection measure (TPM) to be
covered by the definition in Article 6.3, it must be determined whether it was
created specifically for the purpose (‘it is necessary to determine whether it
is designed in the normal course of its
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operation to prevent unauthorised use of copyright work in a way which would
amount to an infringement of copyright’) German case law, in the Heise Online
judgment of 2005, established a ban on supplying software for the
circumvention of any technical protection measure, even with links to
an ‘offshore website’.
The concept of an ‘effective technical measure’ has been transposed by all the
Member States except Slovakia and Sweden.
Paragraph 4 of Article 6 provides that the Member States may take appropriate
measures – in the absence of voluntary measures taken by rightholders – to
ensure that rightholders make available to the beneficiary of an exception or
limitation provided for in national law in accordance with Article 5(2)(a),
(2)(c), (2)(d), (2)(e), (3)(a), (3)(b) or (3)(e) the means of benefiting from
that exception or limitation. The rather broad concept of ‘appropriate
measures’ is applied in different ways in the Member States: there is, for
example, no transposition in Austria, the Czech Republic or the Netherlands,
while there are mediation and arbitration measures in Finland, Denmark,
Estonia, Greece and Hungary and the possibility of legal remedy in Belgium,
Germany, Spain and Ireland. France, finally, provides for remedy via the
administrative route.
Sanctions and the protection of copyright and related rights holders
Article 8.3 of Directive 2001/29 provides that ‘Member States shall ensure that
rightholders are in a position to apply for an injunction against
intermediaries whose services are used by a third party to infringe a
copyright or related right’. Only Austria, Greece, Lithuania and Belgium have
explicitly transposed this provision, which is covered in the other Member
States by existing law.
In recent years there have been a number of court actions against internet
access providers and host servers.
On 29 June 2007 the Brussels Court of First Instance ordered the firm of
Scarlet (formerly Tiscali) to install ‘filters’ to prevent circumvention of
peer-to-peer files. Along similar lines, on 10 February 2006 a Danish judge
ordered a server to cut the internet connection of clients who infringed
copyright, and on 25 October 2006, also in Denmark, the TELE2 server was
ordered to block its clients’ access to the Russian site AllofMP3.com, which
allowed songs to be downloaded illegally.
One very sensitive area is that of ‘peer-to-peer’, i.e. the phenomenon of
websites and software whereby internet users share, either directly or via a
shared site, files containing reproductions of protected works or services
without the consent of the rightholders (Napster (centralised), Kazaa
(decentralised)).
The activities of websites that are not part of the peer-to-peer phenomenon and
which allow downloading of protected works or services without the necessary
authorisation are illegal, and no exception can be applied to them.
So the activity of internet users who send files to their peers must be
regarded as an illegal act of communication to the public without the
possibility of exceptions being applied.
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As regards downloading, it is doubtful whether this activity constitutes an act
of reproduction that could be covered by the exception relating to private
copying (Article 5.2.b) carried out by a natural person for private use for
ends that are neither directly nor indirectly commercial, although in this
case the issue of whether the origin is legal or illegal must be borne in
mind.
On the basis of these considerations, rightholders are currently focusing on
reaching agreements with internet access providers. They are proposing that
procedures be put in place for the purpose of notifying suspected illegal
activity so that access providers can, within an appropriate period, take the
necessary measures vis-à-vis internet users and supply full details of the
latter with a view to prosecution. But all of this could come into conflict
with the principle of protecting personal data.
According to the ECJ ‘Telefonica’ judgment of 29 January 2008, Community law
does not require Member States to divulge these personal data in the context
of civil proceedings in order effectively to protect copyright. The Court did,
however, raise the question of the need to reconcile the fundamental rights to
privacy, on the one hand, and intellectual property protection and effective
recourse on the other. The ‘Telefonica’ judgment confirms the importance of
protecting intellectual property rights and in no way prevents internet access
providers and other online operators from collaborating with rightholders in
the fight against internet piracy.
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- --
~~ Best of wishes
Surely, Microsoft has given up on altruism in the IT industry
http://Schestowitz.com | Open Prospects | PGP-Key: 0x74572E8E
Tasks: 140 total, 1 running, 139 sleeping, 0 stopped, 0 zombie
http://iuron.com - knowledge engine, not a search engine
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