KLYS and COPYSWEDE’s views on EU’s Proposed Directive, COM (1999) 250 final, concerning Copyright and related Rights in the Information Society
Stockholm 29 March 2000
To the members of the European Parliament
Brussels, Belgium
| The EU Parliament will shortly make a decision on an important proposed directive concerning copyright in the information society (COM (1999) 150 final), which will be decisive for the national legislation of the member countries relating to copyright in new media. Copyright is a condition for it to be possible to communicate the results of artistic work to others, at the same time providing authors and performing artists with the means of living. This must function also when new technology is employed. KLYS and COPYSWEDEN, representing Swedish artists, would like to stress the importance of the directive being approved. We would however in our letter to the members of the Parliament like to show the further distinctions and definitions that are necessary in the directive. The strength of the directive lies in its concreteness. In the letter, KLYS and COPYSWEDE highlight the importance of the directive’s containing an exhaustive list of the limitations to copyright that are to be permitted. KLYS and COPYSWEDE would by the letter give a warning against the directive being watered down and given too general a meaning. |
KLYS - Konstnärliga och Litterära Yrkesutövares Samarbetsnämnd (the Swedish Joint Committée for Artistic and Literary Professionals) – is an umbrella organisation for co-operation between 18 Swedish artists’ organisation, which in their turn organise artists and in the areas of visual art, literature, music, stage and broadcasting. Through its member organisations, KLYS represents almost 30,000 Swedish artists. Copyright compensation is one of the main sources of income for these occupational categories.
COPYSWEDE is the artists’ organisations’ negotiating body and collection medium for use subject to copyright, in some instances by media like cable TV, satellite etc. COPYSWEDE concludes agreements on behalf of the rightholders relating to use of works and performances subject to copyright. Since 1 January 1999 COPYSWEDE collects the so-called blank tape levy. COPYSWEDE has fourteen member organisation, most of which are also members of KLYS.
KLYS and COPYSWEDE are represented in a consultative group set up by the Swedish Ministry of Justice in 1999, which regularly discusses EU’s proposed directives relating to copyright and related rights in the information society. At this stage of preparation of the directive, it is important to KLYS and COPYSWEDE to convey the following views to you members of the EU Parliament, who will shortly decide on the proposal.
KLYS and COPYSWEDE are mainly positive to the proposed directive, which specifies and develops current law in a way that contributes to artists and writers being able to make a living from their activities, also by using the opportunities provided by the growing information society. It is therefore of considerable importance to authors and performing artists that a directive comes into existence in this area. There is however a need for limitations and further definitions, above all in Article 5 of the proposed directive, which regulates the limitations that will be permitted of the exclusive right of the author and the performing artists.
KLYS and COPYSWEDE, like the Commission, but as opposed to certain governments, support that Article 5 of the directive should contain an exhaustive list of the limitations that are to be permitted. An exhaustive list will rule out member countries legislating about various own limitations and contributes towards the objective of the directive, harmonisation, being achieved. An open list would have negative consequences for authors and performing artists. It would impair predictability and legal security, which are essential factors also when material subject to copyright is to be used in the digital environment. The uncertainty may exert a restraining influence on the will of authors and performing artists to use the new cross-border forms of distribution offered by the new technology. The realisation of a common European ‘copyright market’ would then be impeded or delayed.
Article 5.1 contains a compulsory total limitation in respect of temporary acts of reproduction. This total limitation with regard to technologically necessary copies is aimed at making communication of works between servers and PCs possible without copyright clearing in respect of the intermediate storage that takes place. In the Commission’s proposal, the total limitation covers distribution of both lawful and unlawful copies. KLYS and COPYSWEDE are of the opinion that the provision must be restricted to lawful copies, i.e. to cases where the author or the performing artist gives permission for the use in connexion with which reproduction takes place, or when the use of the work is otherwise in accordance with the law. The absence of such a restriction to copies that are ’authorised or permitted by law’ prepares the ground for the pirate activities that are unacceptable to authors and performing artists.
Article 5.2 c permits a limitation to the right of production of copies in favour of archives and libraries. It must here be stressed that there is a decisive difference between what is the task of an archive and what is the task of a library. The draft directive does not at present make any distinction. The role of libraries is to communicate the contents of books, newspapers, periodicals, etc. to the citizens. Archives on the other hand focus on the purpose of conservation – not on communicating protected performances. The directive must for that reason distinguish between archives and libraries. Limitations that may be acceptable taking into account the purpose of conservation in archive operations will soon become unacceptable in the library area, which provides a professional and systematic use of works and performances under copyright.
As regards making protected performances available by the provision of computers and Internet in schools and libraries, KLYS and COPYSWEDE should like to draw attention to neat, collective agreement solutions in the form of so-called extended collective licences between organisation representing artists and users as an appropriate solution for easy utilisation of copyright material. The Nordic tradition from photocopying and retransmission by TV and radio channels shows that this works. KLYS and COPYSWEDE therefore welcome the preamble description (12 ter), that has been arrived at by negotiation within the Council of Ministers and which means that the directive will not affect procedures within the member states as regards the exercise of the rights, such as extended collective licences. Preservation of the Nordic extended collective licence is hereby ensured.
Some limitations in Article 5 are combined with a requirement for fair compensation to the rightholders. KLYS and COPYSWEDE here object to the wording of the draft directive ’fair compensation’, which is an unclear concept and difficult to interpret, and which does not necessarily relate to specific or separate monetary compensation. ’Equitable remuneration’ would be a better wording, which ensures that it is a matter of real and effective compensation to authors and performing artists when the limitation in question is utilised. Changing the wording is of crucial importance to authors and performing artists and connects to the use of language in earlier directives. A possible alternative would be further to clarify the contents of the compensation in a preamble of the import just mentioned.
KLYS and COPYSWEDE are moreover very anxious that the Swedish public right of access to documents is maintained and therefore recommend that an addition is included in Article 5.3 e, establishing that the right of access to public documents shall not be affected by the directive.
The Article 6.4 proposed by the Council of Ministers is, in the opinion of KLYS and COPYSWEDE, unacceptable, since it permits a circumvention of technological protection measures in order to take advantage of the limitations to Article 5. Such permission means that the technological measures used by authors and performing artists to protect their work lose their effect. Nor is there any right of compensation linked to the permitted circumvention of technological protection measures in Article 6.4. KLYS and COPYSWEDE therefore propose that the technical protection measures problem instead be solved by an agreed compensation arrangement between users and the authors’/performing artists’ representative organisations.
| For KLYS Peter Curman Chairman |
For STIM Gunnar Petri Chairman |
For information to:
The Ministry of Justice,
Sweden
KLYS and COPYSWEDE are also critical of the definition of the temporary copies that are excepted in Article 5.1. The definition ’temporary acts of reproduction’ is much too wide and should be limited to ’transient and incidental acts of reproduction’. As the draft Directive looks now, ’transient and incidental’ is indeed used as a description of what may constitute temporary reproduction, by the wording ’which are’. It should here be stressed that exceptions and restrictions should always be made with grate care, they should be carefully defined and limited to cases where they are extremely necessary.
Preamble 17 of the draft Directive states that 'mere provision’ of physical facilities for enabling or making a communication does not in itself amount to an act of communication to the public within the meaning of Article 3, which gives holders of rights an exclusive right to communicate their works to the public. The provision constitutes a potential threat against the Swedish Mornington judgment (NJA 1980 p 123), depending on how one is to interpret the definition ’solely providing’. In the Mornington case, the Supreme Court held that the provision of TV sets in hotel rooms for reception constituted public performance within the meaning of the law, i.e. covered by the exclusive right. KLYS would therefore recommend deletion of preamble 17 from the wording of the Directive.
The provision in Article 5.2 c is difficult to read since it is not clear what direct or indirect commercial advantage refers to. The starting point ought to be that any commercial or systematic use of the work of the holders of rights carries a right to compensation in respect of these.