Copyright exceptions and limitations – back to the future

The noise around the non-legislative report of the European Parliament on the Copyright in the Information Society Directive (also known as the InfoSoc Directive and Directive 2001/29/EC) in Brussels is deafening. With one Committee still to table its amendments, the total number of amendment has already reached 759.

Part of the reason for this is that one of the issues being discussed is exceptions and limitations to copyright. Any suggestion of harmonisation, predictability or flexibility is met by energetic opposition by those who claim to speak on behalf of authors. To assess how credible this opposition is, we should look back at some of the lobbying against the only mandatory exception in the Directive – for temporary technical copies.

In the Directive, the European Commission proposed an exception to copyright for copies that are made in networks. Every transfer of a file on a network makes a copy of some description – to get from a to b, the file needs to be in the network for at least a moment. For this reason, it was obvious that temporary, technical copies should not be subject to a separate authorisation from rightsholders. This was clearly uncontroversial – or it should have been.

There was a huge lobby against this exception. The European Publishers Council (EPC) raised several major concerns. Firstly, they argued that only authorised files should be subject to this exception. So, if you accessed an unauthorised file online, this would automatically make your internet access provider guilty of a copyright infringement.

The EPC went on to argue that the exception would create a “a gaping hole in rightsholders’ protection under the reproduction right”, which it explained was a “core right in both the analogue and digital worlds”. It said, but did not explain, that the restriction that such copying could have “no independent economic significance” was not enough to stop the copying of files that were of independent economic significance.

Overall, the text of Article 5.1 (as well as article 5.2b and Article 6) represented “an unacceptable threat to rightsholders”.

So, what happened when this “unacceptable threat” to rightsholders was transposed into national law in the European Union? Absolutely nothing.

The definition proved fully adequate. The safeguards proved fully adequate. No “gaping hole in rightsholders’ protection under the reproduction right was created”. Nothing. After all of the warnings. Nothing.

The damage that would have been caused by heeding the EPC’s warnings, on the other hand, is easier to demonstrate. Canadian legislators failed to implement a clear exception for temporary technical copies. The copyright industries did what one would have expected – they demanded royalty payments to authorise internet providers to do their jobs. This created an extended period of legal uncertainty for internet service providers at a crucial moment in broadband rollout, which only ended when the case was appealed to the Supreme Court, which ruled on the case in 2004.

Position Paper on the Proposal for a European Parliament and Council Directive (97/0359 COD) on the harmonisation of certain aspects of copyright and related rights in the Information Society
http://epceurope.eu/position-paper-on-the-proposal-for-a-european-parliament-and-council-directive-970359-cod-on-the-harmonisation-of-certain-aspects-of-copyright-and-related-rights-in-the-information-society-t/

Canadian High Court takes copyright heat off ISPs (07.01.2004)
http://www.technewsworld.com/story/34891.html

Parltrack summary of non-legislative work on Copyright in the Information Society Directive
http://parltrack.euwiki.org/dossier/2014/2256%28INI%29

(Contribution by Joe McNamee, EDRi)