Directive on Copyright

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Critically evaluate the impact of the E.U. Directive on Copyright in an Information Society, 2001/29/EC, on the problems posed for musical copyright owners by the development of the Internet.

Does the Directive achieve, in your view, a workable and effective balance between copyright owners and Internet users?

Contents

Introduction 3

Aims and Purpose of EU Directive 2001/29/EC 5

Relevant Provisions (relating to Musical Copyright) 7

Introduction
"The Internet and downloading are here to stay…anyone who thinks otherwise should prepare themselves to end up on the slagheap of history." - Janice Ian. 1 This quote quite adequately sums up the position in today's society. Downloading has become a part of everyday life, particularly for the MTV generation that has spawned in every country across the globe.

The rise and rise of the MP3 and availability of online music is evidenced in the fact that in June 2002, it was reported that 19% of Americans aged over 12 had downloaded music or MP3 files from an online file-sharing service 2. Although this percentage may seem small, it translates into 40 million users! It seems 12-17 year olds are the highest users with 41% of them having downloaded music or MP3 files in the month they were surveyed 3. Not even a year later, this figure rose to 48%, with 18-24 year olds following closely behind at 42% 4 . This demonstrates the increasing usage of such sites as Napster and Morpheus and the spread of the demographic market for this type of Internet usage.

It is for this reason that modernisation of copyright laws has become essential. New methods for infringement means that copyright owners are getting substantially less return on their efforts and creativity. There are several threats to enforcing copyright rights on the Internet (Goldman, 1997): no loss of quality in reproduction; no meaningful marginal costs of reproduction or distribution; ability to act anonymously; and uneducated users that do no understand the existing copyright legal framework. The ease by which copyrighted works can be copied and distributed over the Internet means that updating copyright laws so that they are applicable to today's technology, culture and lifestyle is essential.

From the right-holders perspective, if one has put time and effort into creating something which is of value to others - a song or piece of music, they should be rewarded for their efforts. If their rights are not protected, the incentive to produce such works is severely diminished and by hindering the development of such creative minds, society cannot evolve as well as it has done in the past.

However, although the Internet is a unique creation, it provides the user with the means to do exactly the same thing that hi-fi systems and video recorders are able to do, but on a much larger scale. They are both legal formats that can be used for both legal and non-legal purposes. The use to which it is put us entirely dependant on the intention of the user. The makers and distributors of video recorders were not held liable for the illegal distribution of pirated movies.

Whilst the rights of the composer must be protected for the reasons discussed above, exception must be made for legitimate use of copyrighted works by a third party. These mainly concern situations where the use is for non-commercial purposes and can range from teaching and scientific research to use for purposes of criticism and review.

Accordingly, a balance needs to be struck between the composer's right to have control over his work and the objective of encouraging the dissemination of information. The main purpose of the internet is to provide information on a global scale and if this principle is obstructed then its true potential will not be realised.

Aims and Purpose of EU Directive 2001/29/EC
The Directive was conceived as an attempt to harmonise the laws of copyright and related rights, between Member States. The proposed harmonisation was designed to help implement the four freedoms of the internal market, and to ensure compliance with the fundamental principles of law - particularly of intellectual property, freedom of expression and the public interest. No new concepts of intellectual property were created by this Directive, nor were they needed. The Directive was to be a supplementary aid to existing laws governing copyright, databases, computer programs and the Internet, the purpose of which was to adapt the previous law to the current economic realities (such as new forms of exploitation), and technological environment (such as the changing methods of usage of the Internet and its contents).

Without harmonisation, the result may well have been a fragmented internal market and legislative inconsistencies, which may in turn have lead to restrictions on the free movement of services. Significant legal differences and uncertainties in protection may restrict the scope for businesses providing new products and services containing copyright and related rights. For this reason, right-holders should be provided with a decent level of protection in order to foster and maintain intellectual development and creation, without which, today's society would have much difficulty functioning. Member States would also find themselves much disadvantaged when trying to compete in the global market. The authors of new works should be both appropriately rewarded and protected.

In addition, it has become not only desirable, but essential to ensure that collecting societies achieve a higher level of rationalisation and transparency with regard to compliance with competition rules, especially in the light of the requirements arising out of the current technological environment.

The Directive was aimed at promoting learning and culture by protecting works and other subject matter while permitting exceptions or limitations in the public interest for the purpose of education and teaching. The objective was to properly support the dissemination of culture but not by sacrificing strict protection rights or tolerating illegal forms of distribution, counterfeiting, or piracy, all of which have become increasingly widespread with Internet users, particularly with music sites like Napster.
Member States were to be given the option of providing for certain exceptions and limitations for cases such as educational and scientific purposes - libraries, news reporting, people with disabilities, public security, and for uses in administrative and judicial proceedings. When applying the exception or limitation on private copying, Member States were advised to take due account of technological and economic developments, in particular with respect to digital private copying, when effective technological protection measures are available. Such exceptions or limitations should not inhibit the use of technological measures or their enforcement against circumvention.

The basic purpose of the Directive was to both strike a balance between the rights and interests different categories of right-holders, as well as between the different categories of right-holders and users of protected subject matter, and to safeguard those rights.

However, it is important to note that standardisation of law is in itself, ineffective. In an increasingly networked environment, differences between technological measures could lead to incompatibility of systems within the EU. The difficulties created by this is that if Member States have differing levels of technology, the applicability of the laws to each country will be affected. To have a completely standardised level of protection, there must be compatible and interoperable systems within the EU. The optimal solution would be the development of global systems, however, with this Directive being only applicable to the EU, a further global directive would have to be produced.

Relevant Provisions (relating to Musical Copyright)
Directive 2001/29/EC deals with the harmonisation of certain aspects of copyright and related rights in the information society. The provisions with specific relevance to musical copyright begin with Chapter I, dealing with the objective and scope of the Directive. Paragraph 2 of Article 1 states that with exception to certain cases referred to in Article 11, the Directive shall not affect existing Community provisions relating to:

(a) rental right, lending right and certain rights related to copyright in the field of intellectual property;
(b) copyright and related rights applicable to broadcasting of programmes by satellite and cable transmission;
(c) the term of protection of copyright and certain related rights

This provision is important since it provides that copyright rules in general are not altered by this Directive and still apply.

The Directive outlines the rights and exceptions in Chapter II and begins in Article 2 with the recognition of a reproduction right. This provides for the exclusive right to authorise or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or part:

(a) for authors, or their works;
(b) for performers, of fixations of their performances;
(c) for phonogram producers, of their phonograms;
(d) for the producers of the first fixations of films, in respect of the original and copies of their films;
(e) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.

This provision is particularly relevant to music copyright since it gives exclusive reproduction rights to the composer of the music, preventing others from reproducing it without the permission. In relation to the download of music on the internet, it would prevent users from downloading music belonging to a composer, unless they had received their express consent. This Article also covers broadcasts and films so reproduction of music videos would also be expressly forbidden.

Article 3, paragraph 1 provides authors an exclusive right of communication to the public of their works, by wire or wireless means, and includes the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
Paragraph 2 provides for the exclusive right to authorise or prohibit, the making available to the public, in such a way that members of the public may access them from a place and at a time individually chosen by them:

(a) for performers, of fixations of their performances;
(b) for phonogram producers, of their phonograms;
(c) for the producers of the first fixations of films, in respect of the original and copies of their films;
(d) for broadcasting organisations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.

This Article would ensure that music producers would have the exclusive right to make their works available to the public. This would therefore preclude the making available of music to download from websites or via programs without the consent of the composer.

Article 4 provides for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorise or prohibit any form of distribution to the public by sale or otherwise. Paragraph 2 of this Article states that this right shall not be exhausted within the Community except where the first sale or other transfer of ownership in the Community of that object is made by the rightholder or with his consent. With music media this would prevent others from distributing it without the rightholder's consent.

Exceptions and limitations to these provisions can be found in Article 5. Temporary acts of reproduction referred to in Article 2 which are transient or incidental are exempted provided it is an integral part of a technological process and where its sole purposed is to enable a transmission in a network between third parties by an intermediary or a lawful use. This relates to a work which has no independent economic significance and is exempted from the reproduction right in Article 2.

Paragraph 2 of Article 5 exceptions or limitations to the reproduction right in Article 2 in the following cases:

a) in respect of reproduction on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, with the exception of sheet music, provided that the rightholders receive fair compensation.
b) in respect of reproductions on any medium made for private use and for ends that are neither directly nor indirectly commercial, on condition that the rightholders receive fair compensation.
c) in respect of specific acts of reproduction made by publishing accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage
d) in respect of ephemeral recordings of works made by broadcasting organisations by means of their own facilities and for their own broadcasts
e) in respect of reproductions of broadcasts made by social institutions pursuing non-commercial purposes, such as hospitals or prisons, on condition that the rightholders receive fair compensation.

Paragraph 3 provides for exceptions and limitations to the rights defined in Articles 2 and 3. Those specific to music copyright are as follows:

" Where the sole purpose is for teaching or scientific research as long as the author is indicated.
" Where it is for the purposes of criticism or review as long as the authors is indicated. This is allowed as long as the use is in accordance with fair practice and only to the extent required by the specific purpose.
" Incidental inclusion of a work or other subject matter in other material
" Use for the purpose of caricature, parody or pastiche
" Use by communication or making available, for the purpose of research or private study.
" Use in certain other cases of minor importance where exceptions or limitations already exist under national law.

Paragraph 4 provides that the exceptions and limitations to the right of reproduction in paragraphs 2 and 3 also apply to the right of distribution in Article 4.

Finally, paragraph 5 states that the exceptions and limitations in paragraphs 1,2,3 and 4 shall 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.

Article 5 is very important in relation to music copyright since it provides for circumstances where other parties can reproduce or distribute the work without the author's consent. In relation to music on the internet, sub-paragraph (b) in paragraph 2 of Article 5 gives express consent for the private reproduction of composer's works so long as it is not for commercial purposes and that the rightholders receive fair compensation.

Chapter III provides for the protection of technological measures and rights-managements information. Paragraph 2 of Article 6 requires that Member States shall provide adequate legal protection against the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes of devices, products or components or the provision of services which:

(a) are promoted, advertised or marketed for the purpose of circumvention of, or
(b) have only a limited commercially significant purpose or use other than to circumvent, or
(c) are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of, any effective measures.

Article 7 provides for protection against any person knowingly performing without authority the following acts:

(a) the removal or alteration of any electric rights-management information;
(b) the distribution, importation for distribution, broadcasting, communication or making available to the public of works protected under the Directive or under Chapter III of Directive 96/9/EC from which electronic rights-management as been removed or altered without authority.

Article 6 is important in protecting music author's works by providing for the protection of the author of the music from others wishing to circumvent these provisions.

In conclusion, these provisions are the most relevant to music copyright since they are they provide the composer with all the necessary rights to control their works. The exceptions and limitations in Article 5 ensure that these rights can only be deviated from in reasonable circumstances.

  1. Statement made during a live European radio interview on 1 September 1998[^ Return]
  2. Greenspan, Robin (12 June 2002), Making Money on Free Music, CyberAtlas <http://cyberatlas.internet.com/big_picture/applications/article/0,,1301_1365161,00.html>[^ Return]
  3. As in footnote 2 above.[^ Return]
  4. Author (March 2003), Retailers: Downloaders Will Pay for Ownership, CyberAtlas <cyberatlas.internet.com/markets/retailing/article/0,,6061_2110001,00.html>[^ Return]

References
*All online resources used.

Beberman, Julie A; De Carlo, Kean J; Olsen, Anda; Stephens, Don E (1996) Intellectual Property Law and the Internet http://gsulaw.gsu.edu/lawand/papers/su96/beberman.htm

EU Directive 2001/29/EC - taken from www.patent.gov.uk

Goldman, Eric (1997) The Intellectual Property Renaissance in Cyberspace: Why Copyright Law Could be Unimportant on the Internet http://ww.coolie.com/pulications_content.ixe?section=Article+Reprints&id+ar_1504

Heins, M (2002) The Progress of Science and Useful Arts: Why Copyright Today Threatens Intellectual Freedom http://www.fepproject.org/policyreports/copyright.html

Johnson, David R; Post, David G (1996) Law and Border - The Rise of Law in Cyberspace (Stanford Law Review) http://www.cli.org/X0025_LBFIN.html

Lohmann, Fred von (January 2003) Peer to Peer File Sharing and Copyright Law after Napster http://www.eff.org/IP/P"P/20010227_p2p_copyright_white_paper.html

Macmillan, F (2003) Copyright Commodification of Creativity http://oiprc.ox.ac.uk/EJWP0203.pdf

Mason, Aron C (1996) A Crime by Any Other Name, Church of Scientology International http://www.freedommag.org/english/vol2704/crime.htm

Midgley, J. T. J. (2003) Critique of the Proposed UK Implementation of the EU Copyright Directive <uk.eurorights.org>

Remoaldo, P (June 1998) Copyright Infringement, Law and Border on the Internet http://www.fe.up.pt/~mgi97018/is/copyright.html

Whittington, Brandy (1997) The Church of Scientology's Ironic Contribution to Intellectual Property Law on the Internet, Texas Tech University School of Law http://www.law.ttu.edu/cyberjou/jour17.htm

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