B Explanatory
memorandum, by Mr Arnaut, rapporteur
1 Introduction
1. This report is based on one written by Dr Christophe
Geiger, Associate Professor, Director General and Director of the
Research Department, Centre for International Intellectual Property
Studies (CEIPI), University of Strasbourg. Dr Geiger’s report sought
to analyse the links between two rights presented as competing with each
other, namely copyright and the right of access to information,
and emphasises the need to take them into account in the new digital
environment. To these two rights should be added the right to privacy
and the right to freedom of expression, which are threatened by
certain proposed measures to combat “piracy” on the Internet.
2. In preparing this report, the committee organised a hearing
with representatives of associations of authors and a representative
of Google in December 2008. In September 2009 it held an exchange
of views on this matter with members of the Nordic Council’s Committee
on Culture and Education. The information obtained at these two
meetings has also been incorporated into this report.
3. Copyright, buffeted on all sides by new technology, is currently
in turmoil. It is believed that 95% of music downloaded from the
Internet is done so illegally. The music publishing market was halved
between 2003 and 2007 and the new interactive forms of operating
(Web 2.0) accentuate the problem and the disregard of copyright,
which is increasingly viewed by the general public as an anachronistic
curb, not only on the universal dissemination of knowledge, but
also on data exchange between individuals. While the musical creation professions
are under threat, the music publishing professions are on the way
to extinction. The planned digital libraries pose the same type
of problems for copyright in the field of writing.
4. Two attitudes towards this situation have emerged: the first,
which might be termed a “Big Brother” approach, suggests that those
violating copyright law should have their Internet access blocked
and that hard disks on laptops should be examined at airports and
searched for illegal material; the second is the “pirate” approach,
which advocates total freedom of data exchange on the Internet.
Although copyright has shown a remarkable ability to adapt to new
developments in the past, it is by no means certain that this will
continue to be the case in the future. Technological advances clearly
point to the need to rethink the mechanisms for implementing copyright.
5. Accordingly, we must begin by reiterating a number of basic
principles of copyright law and carry out a brief historical survey.
A study will then need to be carried out of how the advent of the
information society has changed the existing balances. This will
be followed by a brief overview of recent developments in the legal provisions
currently in force. This in turn will lead us to consider both the
necessary changes to those provisions in order to ensure better
access to information, and various initiatives that are either under
way or planned, with a view to reconciling all the interests involved.
2 Copyright
law as the result of reconciling diverging interests
6. First of all, it should be pointed out that copyright
law relates not only to the rights of authors but refers to a much
more complex legal situation. Since its inception, copyright law
has attempted to reconcile the claims of the various players who
are the originators and beneficiaries of works, that is to say the
author/creator, consumers and commercial operators. It is essential
for copyright legislation to balance these different interests.
While the position of these players may vary according to the national
legislation concerned, there can be no doubt about the need to strike
a fair balance between the various claims. However, it is not easy
to do this, especially as the interests of the different players
vary considerably and, depending on the situation, may even clash.
7. For example, authors will have an interest in benefiting from
the fruits of their labours by receiving payment for exploitation
of their work. However, at the creative stage they will also have
an interest in accessing existing works in order to build on them
and use them as inspiration for their own work. This is particularly
obvious when the author claims to be producing a scientific work,
since access to existing works will provide a guarantee of the professionalism
of their own work. At the same time, operators will want to recoup
their investment in the production of a work. Nonetheless, when
they produce a work that incorporates elements already protected
by copyright it will be in their interest not to be excessively
obstructed by existing monopolies. Finally, consumers will want
to be able to have easy and affordable access to works for information
and entertainment purposes.
8. However, it will also be in their interest for payment to
be made to creators so that new works continue to be created and
produced. These examples illustrate the complexity of the interests
involved and the need for a balanced approach that takes account
of needs and requirements with regard to both protection and access.
3 The right of access
to information and copyright, converging in terms of both the rationale
and the underlying principles
9. Copyright has its roots in the Enlightenment. The
philosophers of the 18th century called for the recognition of an
author’s intellectual property rights in order to guarantee the
fruits of their labour, with the higher aim of ensuring cultural
and social development. As society needed to regenerate itself,
question its values and be entertained, creators needed to be guaranteed
a free space in which they could create works without having to
compromise themselves vis-à-vis the authorities. The idea of charging
for permission to replicate, or of financially remunerating authors
for reproducing their works, was intended to guarantee their financial
and intellectual independence. Instead of having to flatter the
powerful to receive payment, they could “free themselves” from their
patrons for the greater good of the community, which in this way
was enriched by the abundance of independent works created. Far
from being a selfish right, copyright was clearly conceived as one
imbued with an important social function that was to a large extent
its raison d’être. Since its
inception, therefore, it has maintained close links to freedom of
expression and to its corollary, the right of access to information.
10. This principle of striking a balance between the different
interests involved is reflected in the very essence of copyright.
In principle, copyright does not prevent access to information.
An exclusive right is in fact subject to a number of limitations,
the main or subsidiary aim of which is to ensure free access to
information. There is first and foremost the distinction between
form and idea: copyright covers the form, not the substance of a
work, so different authors can write a book on the same subject
and use the same information, and only the way they shape that information
is protected, not the content. Moreover, the form will be protected
only if it contains a certain amount of creativity, when it is original.
For example, the enumeration of historical events in a table will
certainly have a form but will probably not possess the necessary
originality to be protected. Next, the form is protected only for
a specific period, after which it falls into the public domain.
Lastly, the various copyright laws set out a number of cases where
form can be used to grant access to information (these cases involve
exceptions and limitations, especially for teaching or research
purposes, for libraries, quotations, press reviews, news reports
and for certain cases of private copying when the aim is to obtain
information, etc.).
11. However, this balance has been shaken by technological developments
and their legal and technical consequences.
4 New technologies
upsetting the copyright balance: the need to redefine the rules
to ensure that the various interests involved are taken into account
12. The new information technologies have fundamentally
affected copyright law: networks have made it difficult to control
the way works are used. Technological progress has facilitated the
reproduction and mass distribution of creative works, thus permitting
the establishment in some cases of genuine parallel economies based
on counterfeiting (a phenomenon sometimes improperly and legally
questionably referred to as “piracy”). On the other hand, some non-commercial
uses, such as “peer-to-peer” exchanges of digital files, have grown
to such an extent that they are competing with the normal exploitation
of works and challenging established commercial models.
13. At the same time, this development has been accompanied by
the penetration of the new technologies into the community. The
importance of the Internet in the daily life of citizens is constantly
growing, and members of the public nowadays use it for entertainment,
as well as for information or even training (in particular, the
issue of distance learning and access to knowledge through digital
libraries is taking on a whole new dimension thanks to the possibilities
offered by networks). Alongside recognition of the dangers that
the new technologies may pose for the protection of copyrights,
there is also a general awareness that these technologies offer
the possibility of broad and simple access to information and that
they could play a leading role in the fields of education, research
and culture in general.
14. The Council of Europe is particularly interested in this,
and the political declaration by the ministers of the states participating
in the first Council of Europe Conference of Ministers responsible
for Media and New Communication Services, held in Reykjavik on 28
and 29 May 2009, stated that “growing numbers of people rely on
the Internet as an essential tool for everyday activities (communication,
information, knowledge, commercial transactions, leisure), ultimately
improving their quality of life and well-being. People therefore expect
Internet services to be accessible and affordable, secure, reliable
and ongoing. Access to these services also concerns the enjoyment
of human rights and fundamental freedoms, as well as the exercise
of democratic citizenship”.
15. In the same spirit, on 10 June 2009 the French Constitutional
Council enshrined a genuine “right to the Internet” based on freedom
of expression as set out in Article 11 of the French Declaration
of the Rights of Man and of the Citizen which reads as follows:
“in the current state of online public media and in view of the importance
of these services for participation in democratic life and the expression
of ideas and opinions, this right presupposes the freedom to access
these services.” The Constitutional Council specifies, however,
that this right is not absolute and must be reconciled with other
rights and freedoms of the same status such as copyright, as protected
by the right of ownership, which is governed by Articles 2 and 17
of the Declaration of the Rights of Man and of the Citizen. This
shows that the delicate balance between protection and access has clearly
been called into question and the “digital revolution” has made
it necessary to reassess and adapt the underlying balances.
16. In its resolution of 10 April 2008 on cultural industries
in Europe (2007/2153(INI)), the European Parliament called on the
Commission “to recognise that, as a result of the Internet, traditional
ways of using cultural products and services have completely changed
and that it is essential to ensure unimpeded access to online cultural
content and to the diversity of cultural expressions, over and above
that which is driven by industrial and commercial logic, ensuring
moreover, fair remuneration for all categories of right holders”.
17. Many initiatives have been taken to this end. First of all,
at international level the first step was to strengthen right-holders’
rights, adapt property rights to the digital environment and provide
legal protection for technical measures to protect works by means
of the treaties of the World Intellectual Property Organization (WIPO)
of 20 December 1996. Given the impossibility of ensuring compliance
with copyright rules on networks, right-holders have pinned great
hopes on technical measures, which have in turn been protected against
being circumvented. A solution was adopted at community level with
Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information society.
18. However, no real reflection on the exceptions and limitations
to copyright was initiated to coincide with these efforts to strengthen
exclusive rights. Community harmonisation in the field of limitations
and exceptions has in fact been a failure, with the aforementioned
directive of 22 May 2001 merely providing an exhaustive and (with
one exception) optional list, from which national legislators could
pick the exceptions and limitations that suited them, with the additional
possibility of adopting a more restrictive wording. The European Commission
itself commented in a reflection paper dated 22 October 2009 that
this situation was far from satisfactory (“Creative Content in a
European Digital Single Market: Challenges for the Future”, reflection document
of DG INFSO and DG MARKT, 22 October 2009). The systems introduced
to guarantee the effectiveness of the limits to copyright in the
light of the technical means available have often been very complicated,
poorly harmonised and difficult to implement. Finally, the directive
provided for the possibility of derogating from the exceptions and
limitations by contract in an “access on demand” context, thus enabling doubt
to be cast on their actual benefit in the digital environment.
19. Exceptions and limitations are one of the means available
to national and European Union legislators to ensure the “balance
of interests” and, in particular, to guarantee that collective needs
are taken into account in the legislative provisions. Some of these
exceptions and limitations in the provisions enshrine the right
of access to information. Accordingly, their lack of effectiveness,
the absence of harmonisation and the fact that they have been called
into question as a result of recent developments in copyright law
may be seen as establishing “one-way” legislation, that is to say
legislation of operators’ rights without sufficiently reflecting
the interests of their creators and the community. Moreover, an
increasing number of academics have stressed that in recent amendments
to the rules on this subject not enough account is taken of freedom
of expression and the public’s right to information.
20. In response, on 16 July 2008 the European Commission adopted
a Green Paper on “Copyright in the Knowledge Economy”, in order
to “foster a debate on how knowledge for research, science and education
can best be disseminated in the online environment. The Green Paper
aims to set out a number of issues connected with the role of copyright
in the ‘knowledge economy’ and intends to launch a consultation
on these issues”. The Commission believes that it is the exceptions
and limitations that ensure the dissemination of knowledge within
copyright law and which are the key to the balance to be sought
by European Union legislation. The first conclusions of this consultation
were in fact the subject of a communication by the European Commission
on 19 October 2009, in which it announced the instigation of preparatory
work for a possible revision of the legislative framework.
21. However, the issue of exceptions and limitations in the digital
environment is now also being discussed at international level,
as WIPO has at last included this topic on the agenda of its Standing
Committee on Copyright and Related Rights (SCCR) and begun discussions
to study various proposals for a treaty in this field. Accordingly,
this is now a global issue. WIPO points out first of all that “in
order to maintain an appropriate balance between the interests of
right-holders and users of protected works, copyright laws allow
certain limitations on economic rights, that is, cases in which
protected works may be used without the authorisation of the right-holder
and with or without payment of compensation”.
22. It goes on to say that “due to the development of new technologies
and the ever-increasing worldwide use of the Internet, it has been
considered that the above balance between various stakeholders’
interests needs to be recalibrated”. At a meeting in late May 2009,
discussions centred on the proposed treaty on exceptions to copyright
for the visually impaired. However, the discussions are to be pursued
in a broader context. The conclusions of the chair of the standing
committee state that “the committee reconfirmed its commitment to
work on the outstanding issues of the limitations and exceptions
…, taking into account development-related concerns and the need
to establish timely and practical result-oriented solutions.
23. Likewise, the WIPO standing committee reaffirmed its commitment
to continue without delay its work in a global and inclusive approach,
including the multifaceted issues affecting access by the blind,
visually impaired and other reading-disabled persons to protected
works”. WIPO also intends to draw up a questionnaire on “limitations
and exceptions for educational activities, activities of libraries
and archives, provisions for disabled persons, as well as the implications
of digital technology in the field of copyright, including as they
relate to social, cultural and religious limitations and exceptions”
and to maintain the issue on the agenda of its forthcoming meetings.
24. Exceptions are an important issue but they do not address
the substance of the question and therefore cannot settle the matter
definitively. Those who take an interest in politics are well aware
that regulations which cannot be enforced are poor regulations and
this matter will not be settled by focusing on the copyright aspect alone.
The solution also depends to a large extent on what is termed Internet
governance. The Internet Governance Forum, convened by the United
Nations following the World Summit on the Information Society held
in Tunis in 2005, met for the fourth time in Sharm el Sheikh from
15 to 18 November 2009. It is being closely followed by the Council
of Europe in general and the Parliamentary Assembly in particular
(we were represented by our colleague Andrew McIntosh).
25. These questions are also being discussed in other forums,
for example the secret negotiations associated with the ACTA (Anti-counterfeiting
Trade Agreement) treaty, the sixth round of which was held in Seoul
from 4 to 6 November 2009, and the next is scheduled to be held
in Mexico in January 2010. According to the media, this agreement
is aimed, amongst other things, at making Internet service providers
responsible for the exchanges between their subscribers.
26. In our view, it is essential to ensure that human rights are
upheld: both the rights of authors to appropriate remuneration and
the rights of citizens to respect for their privacy. We must firmly
reject what is already happening at several airports in the United
States, namely examination of mobile telephones and laptops, MP3 players
and other electronic equipment, in search of illegal material.
5 Rethinking the
legal framework
27. In copyright law it is essential to guarantee a fair
balance between the different interests involved. This report is
clearly not the place for a detailed description of what the architecture
of tomorrow’s copyright law might look like, since that would go
well beyond its scope. The issues to be resolved are highly complicated and
the responses to them are still being studied. Moreover, they will
depend to a large extent on future technical and social developments
and on the ability of right-holders and the various players concerned
to establish systems allowing for effective and proportionate access
to information and to the knowledge contained in works. However,
we will try to outline below a number of elements that could serve
as a basis for adapting legislation at both national and supra-national
level.
28. While there can be no doubt that those involved in the creation
of artistic works are entitled to appropriate remuneration, this
by no means implies that decades later their descendents should
continue to derive income from those works. It might be helpful
to begin by considering whether copyright should be negotiated or inherited.
Moreover, there does not appear to be any justification for restricting
the right to privacy or the right to information on the pretext
of enforcing copyright.
29. In this regard, the European Commission’s Green Paper on “Copyright
in the Knowledge Economy” identifies a number of exceptions and
limitations that have a particular impact on knowledge dissemination
and proposes launching a discussion on whether or not they should
be extended in the era of digital dissemination. There is also a
need to discuss ways of guaranteeing the adaptability of exceptions
and limitations to new technical and social circumstances and to
consider the case for introducing more flexibility in the present system.
Ways should then be examined of guaranteeing the practical benefit
of these limitations in the light of contractual arrangements and
technical measures. Finally, it is crucial to ensure that creators
receive fair and equitable remuneration. Granting access to information
on no account means that the access should be free of charge.
30. In order to analyse the development of exceptions and limitations
to copyright, it is clearly necessary to distinguish between those
that allow access to information and those that do not. This differentiated
approach would appear to be the preferred approach of the European
Commission in its recent reflection document of 22 October 2009:
“In general, a rather more nuanced approach to exceptions and limitations
might be in order in the medium term. There are ‘public interest’
exceptions for research and teaching or for access to works in favour
of persons with a disability on the one hand, and there are the
‘consumer’ exceptions, such as private copying, on the other hand.
… Future policy should make a clear distinction and proposals should
clearly state which exceptions should be harmonised and made mandatory
in scope as a matter of priority and the precise goals pursued in
doing so”.
31. Not all the exceptions and limitations have the same justification
and importance for the development of the knowledge society. The
limitations that warrant particular attention include exceptions
for libraries and archives, teaching and research purposes, news
reports, press reviews, quotations and, more incidentally, people
with disabilities, as well as private copying when this allows access
to information and is not already covered by one of the exceptions
already mentioned. The Green Paper also proposes studying the possibility of
introducing an exception for use for creative purposes. In this
connection, see also the European Commission’s reflection document
which states that “serious considerations should be given to measures facilitating
non-commercial re-use of copyrighted content for artistic purposes”.
32. These legitimate uses in relation to effective access to information
must be clearly separated from other uses of works that are mainly
for consumption purposes. A user who downloads Britney Spears’ latest
hit from the Internet is not seeking to obtain information but simply
wants to listen to the music free of charge without having to buy
the CD. To claim the contrary would clearly be an abuse of the right
to information and discredit the argument. This dimension needs
to be included in the discussions on the future of the “private
copying” exception (downloading a work from an illicit source could
be excluded from such an exception).
33. At all events, in order to offset the economic prejudice suffered
by right-holders because of private digital copying it would appear
necessary to revise, standardise and increase the amounts awarded
in respect of “private copying” exceptions, including such media
as computer hard disks and other digital data storage hardware facilitating
copying, and a harmonised legal framework needs to be put forward
to deal with the issue of file exchanges on the Internet. This does
not necessarily involve a solution based on criminal law.
34. In this regard, a particularly severe decision was taken by
the Stockholm District Court on 17 April 2009 concerning the Swedish
file-swapping platform The Pirate Bay, four representatives of which
were sentenced to one-year prison sentences and fined €2.7 million
in damages for complicity in forgery, having provided the means
for committing the main offence (illegal downloading). This decision
is, however, being appealed against, and we must wait and see whether
the outcome is confirmed at appeal.
35. The idea of a “graduated response” in terms of sanctions,
as was initially envisaged in France by the bill preceding the passing
of the Law on Copyright and Related Rights in the Information Society
of 1 August 2006, could probably have benefited from further thought
in terms of its mode of implementation and its consistency with
the rest of the legislative mechanism. The unauthorised reproduction
and public communication of a work for personal purposes by means
of “peer-to-peer” software was made a petty offence rather than
a criminal one (as in the case of forgery), resulting in a lighter
criminal sanction. This provision does not appear in the final text
of the law because it was rejected by the French Constitutional
Council on 27 July 2006, which held that the specific nature of
peer-to-peer exchange networks did not justify the differentiated
treatment laid down in the provision in question with regard to
infringement of copyright and related rights by other means, and
that it was therefore contrary to the principle of equality before
criminal law.
36. On the other hand, nor can we excessively restrict, on the
grounds of wishing to avoid “criminalising” Internet users, such
fundamental rights as the freedoms of expression and communication
or the right to privacy and protection of personal data, which must
also be taken into account. The European Parliament resolution of
10 April 2008, calls on the European Commission and the member states
“to recognise that the Internet is a vast platform for cultural
expression, access to knowledge, and democratic participation in European
creativity, bringing generations together through the information
society; calls on the Commission and the member states to avoid
adopting measures conflicting with civil liberties and human rights
and with the principles of proportionality, effectiveness and dissuasiveness,
such as the interruption of Internet access”. Amendment 138 to the
“Telecom Package”, adopted by the European Parliament on 6 May 2009,
requires member states to obtain a prior court order before suspending
access to the Internet.
37. This was clearly the view of the French Constitutional Council
in its recent decision on the law of 12 June 2009 promoting dissemination
and creation via Internet, which authorised an administrative authority
(the High Authority for the Dissemination of Works and Protection
of Rights on the Internet – HADOPI) to interrupt Internet access
in the event of illegal downloading. The Constitutional Council
considered that such infringement of the freedom of communication
must be strictly regulated and was improper if effected by an administrative
authority rather than the courts. Following this decision, a second
law on criminal law protection of literary and artistic property
on the Internet (“HADOPI 2”) was passed and promulgated after virtually unanimous
validation by the French Constitutional Council on 28 October 2009.
This law provides for a simplified court procedure for obtaining
an interruption of Internet access (via a court order). The option explored
by French legislation therefore lay outside the field of copyright
exceptions and limitations. However, if this is to be the preferred
approach in the future, a clear distinction must be drawn between
those exceptions and limitations that are crucially important for
the development of the knowledge society and those that are not.
38. The other possibility which should also be explored with a
view to facilitating access to certain works is less radical than
that of limitations and exceptions to copyright, because it concerns
only the exercise, rather than the existence of the exclusive right,
is that of compulsory collective management. In this case, access
can be guaranteed by the fact that the users know that they can
obtain the requisite authorisation from one single point of contact,
namely a collecting society. A number of European Union directives
sometimes authorise or indeed impose the use of compulsory collective
management. This is the case of the Council
Directive 93/83/EEC
of 27 September
1993 on cable retransmission, and also the Council
Directive 92/100/EEC
of 19 November
1992, which provides for the collective management of rentals; the
directive of 27 September 2001 makes the same provisions in respect
of resale rights.
39. In France, the right of reproduction by reprography is also
the subject of compulsory collective management. In this case, exclusive
rights are implemented, which strengthens the collecting society’s
hand in negotiations. This possibility warrants further study. This
option was expressly considered in France for “orphan” works (works
still covered by copyright but whose owners cannot be identified
or located) in a report on this subject to the Higher Council for
Literary and Artistic Property (CSPLA), and has also been studied
as a means of “legalising” peer-to-peer exchanges via the Internet
by submitting the file upload protocol (subject to authorisation
from the right-holder) to a compulsory collective management system.
6 Contractual initiatives
and the other access possibilities under discussion
40. Any initiative aimed at reviewing the existing statutory
framework to guarantee better access to works and to the information
they contain, especially for teaching and research purposes, must
obviously take account of any present contractual arrangements between
the stakeholders concerned. Since regulation makes no sense if the
parties manage to agree on establishing satisfactory means of access,
it is necessary to be aware of initiatives in progress and model
licences drawn up by means of consultation among the relevant protagonists,
enabling citizens to access information on acceptable terms and
conditions. However, the effectiveness of such agreements must also
be examined closely since the existence of arrangements that allow
for on-demand access does not necessarily mean that that access
is possible on satisfactory terms and conditions. It will accordingly
be necessary to verify that the cost of the service offered is not
unreasonable or that the conditions of access are not too restrictive.
Apart from considering the arrangements between the stakeholders
concerned, it is important to look at practices that are becoming
established in the scientific community, especially the online availability
of so-called “open content” works that use free licence mechanisms,
such as the “Creative Commons” model.
41. There are a number of initiatives in this context. This is
not the place to produce a full inventory, rather we shall simply
mention a few examples. With regard to the digitisation of orphan
works, the European “ARROW” project (Accessible Registries of Rights
Information and Orphan Works towards Europeana) has been set up
to develop a database that makes it easier to search for right-holders.
A European legal initiative to authorise the digitisation of orphan
works may therefore seem premature.
42. The European Commission recently decided that orphan works
would be the subject of an impact assessment, which “will explore
a variety of approaches to facilitate the digitisation and dissemination
of orphan works. Possible approaches include, inter
alia, a legally binding stand-alone instrument on the
clearance and mutual recognition of orphan works, an exception to
the 2001 directive, or guidance on cross-border mutual recognition
of orphan works”. In addition, the European Commission has set up
a High Level Expert Group on Digital Libraries (whose terms of reference
were renewed by a European Commission decision of 25 March 2009).
This brings together the main players concerned and aims to promote
mechanisms drawn up on a voluntary basis. The effectiveness of the
solutions that have been (or will be) developed in this connection
need to be examined. In Europe, there is also the “Europeana” digital
library project to digitise a large number of public domain and
copyright-protected works in agreement with right-holders.
43. Finally, mention needs to be made of the agreement signed
by Google in October 2008 with a number of publishers belonging
to the Association of American Publishers to allow the full digitisation
by Google of numerous works (especially orphan works and books that
are out of print) in order to make them accessible online, in whole
or in part. However, this very complicated agreement relates only
to the United States and its legality was to have been considered
by an American court (the United States District Court for the Southern District
of New York) on 7 October 2009, but the date was postponed in agreement
between the parties after the American Department of Justice expressed
a number of reservations about the legal validity of the agreement.
The fact that many points in the agreement contravene current legislation
in many European countries, particularly the provisions in the copyright
field, does not mean that there will be no impact in Europe since
European right-holders will be affected if they hold copyright over
works digitised by Google to be accessible in the United States.
The agreement also allows a number of authors in the United States
to withdraw from the agreement retroactively if they so wish (via
an opt-out clause).
44. A close watch will therefore have to be kept on these developments.
While users can no doubt look forward to better access and research
opportunities as a result of this digitisation initiative and the
fact that library archives are made available online, such an agreement
does pose a number of problems, especially in the context of competition
law, since a single search engine (a private player) will possess
all the digital sources of libraries and archives (most of which
are public institutions). As was rightly pointed out by Professor
Annette Kur, President of ATRIP, at the hearing in December 2008,
“if certain search engines become sole source-databases for library
stocks and/or other sources of information and knowledge, this may
lead to serious distortions on the market for informational products
and services, potentially resulting in misuse of dominant positions,
most notably in excess pricing. For this reason, the developments
in this field must be subject to adequate control, in particular
by the competition authorities”. Such a dominant position could
entail risks of abuse, and continued vigilance will be required.
See, in this connection, the background information memorandum on
the “Google Books” agreement, submitted to the Council of the European
Union by the German Delegation on 20 May 2009: “The German Delegation would like
to raise member states’ awareness of the risks associated with this
activity and draw their attention to the fact that Google’s actions
… could have an impact on the concentration of media ownership and
on cultural diversity in general, and especially in the European
Union. … The Commission is requested to take the matter up and examine
the Google Books project as well as the impact of the settlement
sought in the USA from the point of view of copyright law, law on restrictive
practices and cultural policy and, where appropriate, to introduce
new measures to protect right holders”.
7 Conclusion
45. In discussing the future of copyright in Europe,
therefore, we have to stress the need to strike a fair balance between
appropriate remuneration for the work of creation, respect for privacy,
freedom of expression and access to information. At the first Council
of Europe Conference of Ministers responsible for Media and New
Communication Services in Reykjavik, Iceland, on 28 and 29 May 2009,
the government representatives, after reasserting “the importance
of copyright protection”, underlined “the need to explore further,
in close co-operation with relevant stakeholders, issues deriving
from the use of copyrighted material or the exploitation of user-generated
content by media-like services to protect and promote the freedom
of expression and information”.
46. The Council of Europe is the only pan-European institution
and it has a duty to seek to help restore the balance between the
copyrights of authors of intellectual works, investors and the general
public, and find solutions to the problems and questions posed by
the imbalance with respect to the functioning of democracy, the
protection of human rights, and the viability of the rule of law.
The Assembly should therefore recommend that the Committee of Ministers
ensure that the Organisation is adequately equipped to contribute
decisively to the clarification of the above questions, which have
a bearing on its fundamental values.
47. Amongst other things, it could initiate a future-oriented
study on copyright in the digital environment and give thought to
the changes required to guarantee a flexible legal apparatus, enabling
copyright law to adapt more easily to technical, economic and social
changes; initiate reflection on the system of exceptions and limitations
by opening a transparent public debate, enabling each interested
group to express its point of view; assist and encourage contractual
initiatives to provide improved access to works and their information
content, particularly in the fields of education and research, and
verify their effectiveness and implementation by means of empirical
studies; identify the exceptions and limitations essential for the
freedom of expression and information in a democratic society and
ensure that these are fully effective, as well as identifying the exceptions
and limitations which are merely incidental to this objective, and
propose a differentiated approach; introduce compulsory collective
management systems, especially where exclusive rights are very difficult
to enforce and could have adverse effects on access to information
(for example, in the case of orphan works) and, in general, facilitate
and propose a framework for interdisciplinary work (economic, philosophical, sociological,
historical, and psychological) on copyright.
***
Reporting committee:
Committee on Culture, Science and Education
Reference to committee: Doc. 11272, Reference 3360 of 25 June 2007
Draft recommendation adopted
by the committee on 8 December 2009 with 5 abstentions
Members of the committee:
Mrs Anne Brasseur, (Chairperson),
Mr Detlef Dzembritzki (1st Vice-Chairperson), Mr Mehmet Tekelioğlu (2nd Vice-Chairperson),
Mrs Miroslava Němcová, (3rd
Vice-Chairperson), Mr Florin Serghei Anghel, Mr Lokman Ayva, Mr
Walter Bartoš, Mrs Deborah
Bergamini, Mrs Oksana Bilozir, Mrs Guðfinna S. Bjarnadóttir, Mrs
Rossana Boldi, Mr Petru Călian (alternate: Mrs Mihaela Stoica), Mr Joan Cartes Ivern,
Lord Chidgey, Mr Miklós,
Csapody, Mrs Lena Dąbkowska-Cichocka,
Mr Joseph Debono Grech, Mr Daniel Ducarme, Mrs Anke Eymer, Mr Gianni Farina, Mrs Blanca Fernández-Capel Baños (alternate:
Mr Gabino PucheRodriguez-Acosta), Mrs Emelina FernándezSoriano,
Mr Axel Fischer, Mr Gvozden Srećko Flego,
Mr Dario Franceschini, Mr
José Freire Antunes (alternate: Mr José Luís Arnaut),
Mr Martin Graf, Ms Sylvi Graham, Mr Oliver Heald, Mr Rafael Huseynov,
Mr Fazail İbrahimli, Mr Mogens Jensen, Mr Morgan Johansson, Mrs
Francine John-Calame, Mr Jón Jónsson, Ms Flora Kadriu, Mrs Liana
Kanelli, Mr Jan Kaźmierczak,
Ms Cecilia Keaveney, Mrs Svetlana Khorkina, Mr Serhii Kivalov, Mr
Anatoliy Korobeynikov, Ms Elvira
Kovács, Mr József Kozma, Mr Jean-Pierre Kucheida, Mr Ertuğrul Kumcuoğlu, Ms Dalia Kuodytė, Mr Markku Laukkanen, Mr René van der Linden,
Mrs Milica Marković, Mrs
Muriel Marland-Militello, Mr Andrew McIntosh,
Mrs Maria Manuela de Melo,
Mrs Assunta Meloni, Mr Paskal Milo, Ms Christine Muttonen,Mr Tomislav
Nikolić, Ms Anna Ntalara, Mr Edward O'Hara,
Mr Kent Olsson, Mrs Antigoni Papadopoulos, Mr Petar Petrov, Mrs
Zatuhi Postanjyan, Mrs Adoración
Quesada Bravo, Mr Frédéric Reiss, Mrs Mailis Reps, Mrs Andreja Rihter, Mr Nicolae Robu, Mrs Tatiana
Rosova, Mrs Anta Rugāte, Mr Leander Schädler, Mr André Schneider,
Mr Predrag Sekulić, Mr Yury Solonin, Mr Christophe Steiner, Mrs
Doris Stump, Mr Valeriy Sudarenkov,
Mr Petro Symonenko, Mr Guiorgui Targamadzé, Mr Latchezar Toshev, Mr Hugo Vandenberghe, Mr
Klaas De Vries, Mr Piotr Wach,
Mr Wolfgang Wodarg
NB: the names of the members who took part in the meeting
are printed in bold
Secretariat of the committee: Mr
Ary, Mr Dossow, Mr Fuchs
