EUR-Lex - 32001L0029

Directive 2001/29/EC of the European Parliament and of the = Council of=20 22 May 2001 on the harmonisation of certain aspects of copyright and = related=20 rights in the information society

Official Journal = L 167 ,=20 22/06/2001 P. 0010 - 0019

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=20 the information society

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and = in=20 particular Articles 47(2), 55 and 95 thereof,

Having regard to the proposal from the Commission(1),

Having regard to the opinion of the Economic and Social = Committee(2),

Acting in accordance with the procedure laid down in Article 251 of = the=20 Treaty(3),

Whereas:

(1) The Treaty provides for the establishment of an internal market = and the=20 institution of a system ensuring that competition in the internal market = is not=20 distorted. Harmonisation of the laws of the Member States on copyright = and=20 related rights contributes to the achievement of these objectives.

(2) The European Council, meeting at Corfu on 24 and 25 June 1994, = stressed=20 the need to create a general and flexible legal framework at Community = level in=20 order to foster the development of the information society in Europe. = This=20 requires, inter alia, the existence of an internal market for new = products and=20 services. Important Community legislation to ensure such a regulatory = framework=20 is already in place or its adoption is well under way. Copyright and = related=20 rights play an important role in this context as they protect and = stimulate the=20 development and marketing of new products and services and the creation = and=20 exploitation of their creative content.

(3) The proposed harmonisation will help to implement the four = freedoms of=20 the internal market and relates to compliance with the fundamental = principles of=20 law and especially of property, including intellectual property, and = freedom of=20 expression and the public interest.

(4) A harmonised legal framework on copyright and related rights, = through=20 increased legal certainty and while providing for a high level of = protection of=20 intellectual property, will foster substantial investment in creativity = and=20 innovation, including network infrastructure, and lead in turn to growth = and=20 increased competitiveness of European industry, both in the area of = content=20 provision and information technology and more generally across a wide = range of=20 industrial and cultural sectors. This will safeguard employment and = encourage=20 new job creation.

(5) Technological development has multiplied and diversified the = vectors for=20 creation, production and exploitation. While no new concepts for the = protection=20 of intellectual property are needed, the current law on copyright and = related=20 rights should be adapted and supplemented to respond adequately to = economic=20 realities such as new forms of exploitation.

(6) Without harmonisation at Community level, legislative activities = at=20 national level which have already been initiated in a number of Member = States in=20 order to respond to the technological challenges might result in = significant=20 differences in protection and thereby in restrictions on the free = movement of=20 services and products incorporating, or based on, intellectual property, = leading=20 to a refragmentation of the internal market and legislative = inconsistency. The=20 impact of such legislative differences and uncertainties will become = more=20 significant with the further development of the information society, = which has=20 already greatly increased transborder exploitation of intellectual = property.=20 This development will and should further increase. Significant legal = differences=20 and uncertainties in protection may hinder economies of scale for new = products=20 and services containing copyright and related rights.

(7) The Community legal framework for the protection of copyright and = related=20 rights must, therefore, also be adapted and supplemented as far as is = necessary=20 for the smooth functioning of the internal market. To that end, those = national=20 provisions on copyright and related rights which vary considerably from = one=20 Member State to another or which cause legal uncertainties hindering the = smooth=20 functioning of the internal market and the proper development of the = information=20 society in Europe should be adjusted, and inconsistent national = responses to the=20 technological developments should be avoided, whilst differences not = adversely=20 affecting the functioning of the internal market need not be removed or=20 prevented.

(8) The various social, societal and cultural implications of the = information=20 society require that account be taken of the specific features of the = content of=20 products and services.

(9) Any harmonisation of copyright and related rights must take as a = basis a=20 high level of protection, since such rights are crucial to intellectual=20 creation. Their protection helps to ensure the maintenance and = development of=20 creativity in the interests of authors, performers, producers, = consumers,=20 culture, industry and the public at large. Intellectual property has = therefore=20 been recognised as an integral part of property.

(10) If authors or performers are to continue their creative and = artistic=20 work, they have to receive an appropriate reward for the use of their = work, as=20 must producers in order to be able to finance this work. The investment = required=20 to produce products such as phonograms, films or multimedia products, = and=20 services such as "on-demand" services, is considerable. Adequate legal=20 protection of intellectual property rights is necessary in order to = guarantee=20 the availability of such a reward and provide the opportunity for = satisfactory=20 returns on this investment.

(11) A rigorous, effective system for the protection of copyright and = related=20 rights is one of the main ways of ensuring that European cultural = creativity and=20 production receive the necessary resources and of safeguarding the = independence=20 and dignity of artistic creators and performers.

(12) Adequate protection of copyright works and subject-matter of = related=20 rights is also of great importance from a cultural standpoint. Article = 151 of=20 the Treaty requires the Community to take cultural aspects into account = in its=20 action.

(13) A common search for, and consistent application at European = level of,=20 technical measures to protect works and other subject-matter and to = provide the=20 necessary information on rights are essential insofar as the ultimate = aim of=20 these measures is to give effect to the principles and guarantees laid = down in=20 law.

(14) This Directive should seek to promote learning and culture by = protecting=20 works and other subject-matter while permitting exceptions or = limitations in the=20 public interest for the purpose of education and teaching.

(15) The Diplomatic Conference held under the auspices of the World=20 Intellectual Property Organisation (WIPO) in December 1996 led to the = adoption=20 of two new Treaties, the "WIPO Copyright Treaty" and the "WIPO = Performances and=20 Phonograms Treaty", dealing respectively with the protection of authors = and the=20 protection of performers and phonogram producers. Those Treaties update = the=20 international protection for copyright and related rights significantly, = not=20 least with regard to the so-called "digital agenda", and improve the = means to=20 fight piracy world-wide. The Community and a majority of Member States = have=20 already signed the Treaties and the process of making arrangements for = the=20 ratification of the Treaties by the Community and the Member States is = under=20 way. This Directive also serves to implement a number of the new = international=20 obligations.

(16) Liability for activities in the network environment concerns not = only=20 copyright and related rights but also other areas, such as defamation,=20 misleading advertising, or infringement of trademarks, and is addressed=20 horizontally in Directive 2000/31/EC of the European Parliament and of = the=20 Council of 8 June 2000 on certain legal aspects of information society = services,=20 in particular electronic commerce, in the internal market ("Directive on = electronic commerce")(4), which clarifies and harmonises various legal = issues=20 relating to information society services including electronic commerce. = This=20 Directive should be implemented within a timescale similar to that for = the=20 implementation of the Directive on electronic commerce, since that = Directive=20 provides a harmonised framework of principles and provisions relevant = inter alia=20 to important parts of this Directive. This Directive is without = prejudice to=20 provisions relating to liability in that Directive.

(17) It is necessary, especially in the light of the requirements = arising out=20 of the digital environment, to ensure that collecting societies achieve = a higher=20 level of rationalisation and transparency with regard to compliance with = competition rules.

(18) This Directive is without prejudice to the arrangements in the = Member=20 States concerning the management of rights such as extended collective=20 licences.

(19) The moral rights of rightholders should be exercised according = to the=20 legislation of the Member States and the provisions of the Berne = Convention for=20 the Protection of Literary and Artistic Works, of the WIPO Copyright = Treaty and=20 of the WIPO Performances and Phonograms Treaty. Such moral rights remain = outside=20 the scope of this Directive.

(20) This Directive is based on principles and rules already laid = down in the=20 Directives currently in force in this area, in particular Directives=20 91/250/EEC(5), 92/100/EEC(6), 93/83/EEC(7), 93/98/EEC(8) and 96/9/EC(9), = and it=20 develops those principles and rules and places them in the context of = the=20 information society. The provisions of this Directive should be without=20 prejudice to the provisions of those Directives, unless otherwise = provided in=20 this Directive.

(21) This Directive should define the scope of the acts covered by = the=20 reproduction right with regard to the different beneficiaries. This = should be=20 done in conformity with the acquis communautaire. A broad definition of = these=20 acts is needed to ensure legal certainty within the internal market.

(22) The objective of proper support for the dissemination of culture = must=20 not be achieved by sacrificing strict protection of rights or by = tolerating=20 illegal forms of distribution of counterfeited or pirated works.

(23) This Directive should harmonise further the author's right of=20 communication to the public. This right should be understood in a broad = sense=20 covering all communication to the public not present at the place where = the=20 communication originates. This right should cover any such transmission = or=20 retransmission of a work to the public by wire or wireless means, = including=20 broadcasting. This right should not cover any other acts.

(24) The right to make available to the public subject-matter = referred to in=20 Article 3(2) should be understood as covering all acts of making = available such=20 subject-matter to members of the public not present at the place where = the act=20 of making available originates, and as not covering any other acts.

(25) The legal uncertainty regarding the nature and the level of = protection=20 of acts of on-demand transmission of copyright works and subject-matter=20 protected by related rights over networks should be overcome by = providing for=20 harmonised protection at Community level. It should be made clear that = all=20 rightholders recognised by this Directive should have an exclusive right = to make=20 available to the public copyright works or any other subject-matter by = way of=20 interactive on-demand transmissions. Such interactive on-demand = transmissions=20 are characterised by the fact that members of the public may access them = from a=20 place and at a time individually chosen by them.

(26) With regard to the making available in on-demand services by=20 broadcasters of their radio or television productions incorporating = music from=20 commercial phonograms as an integral part thereof, collective licensing=20 arrangements are to be encouraged in order to facilitate the clearance = of the=20 rights concerned.

(27) The mere provision of physical facilities for enabling or making = a=20 communication does not in itself amount to communication within the = meaning of=20 this Directive.

(28) Copyright protection under this Directive includes the exclusive = right=20 to control distribution of the work incorporated in a tangible article. = The=20 first sale in the Community of the original of a work or copies thereof = by the=20 rightholder or with his consent exhausts the right to control resale of = that=20 object in the Community. This right should not be exhausted in respect = of the=20 original or of copies thereof sold by the rightholder or with his = consent=20 outside the Community. Rental and lending rights for authors have been=20 established in Directive 92/100/EEC. The distribution right provided for = in this=20 Directive is without prejudice to the provisions relating to the rental = and=20 lending rights contained in Chapter I of that Directive.

(29) The question of exhaustion does not arise in the case of = services and=20 on-line services in particular. This also applies with regard to a = material copy=20 of a work or other subject-matter made by a user of such a service with = the=20 consent of the rightholder. Therefore, the same applies to rental and = lending of=20 the original and copies of works or other subject-matter which are = services by=20 nature. Unlike CD-ROM or CD-I, where the intellectual property is = incorporated=20 in a material medium, namely an item of goods, every on-line service is = in fact=20 an act which should be subject to authorisation where the copyright or = related=20 right so provides.

(30) The rights referred to in this Directive may be transferred, = assigned or=20 subject to the granting of contractual licences, without prejudice to = the=20 relevant national legislation on copyright and related rights.

(31) A fair balance of rights and interests between the different = categories=20 of rightholders, as well as between the different categories of = rightholders and=20 users of protected subject-matter must be safeguarded. The existing = exceptions=20 and limitations to the rights as set out by the Member States have to be = reassessed in the light of the new electronic environment. Existing = differences=20 in the exceptions and limitations to certain restricted acts have direct = negative effects on the functioning of the internal market of copyright = and=20 related rights. Such differences could well become more pronounced in = view of=20 the further development of transborder exploitation of works and = cross-border=20 activities. In order to ensure the proper functioning of the internal = market,=20 such exceptions and limitations should be defined more harmoniously. The = degree=20 of their harmonisation should be based on their impact on the smooth = functioning=20 of the internal market.

(32) This Directive provides for an exhaustive enumeration of = exceptions and=20 limitations to the reproduction right and the right of communication to = the=20 public. Some exceptions or limitations only apply to the reproduction = right,=20 where appropriate. This list takes due account of the different legal = traditions=20 in Member States, while, at the same time, aiming to ensure a = functioning=20 internal market. Member States should arrive at a coherent application = of these=20 exceptions and limitations, which will be assessed when reviewing = implementing=20 legislation in the future.

(33) The exclusive right of reproduction should be subject to an = exception to=20 allow certain acts of temporary reproduction, which are transient or = incidental=20 reproductions, forming an integral and essential part of a technological = process=20 and carried out for the sole purpose of enabling either efficient = transmission=20 in a network between third parties by an intermediary, or a lawful use = of a work=20 or other subject-matter to be made. The acts of reproduction concerned = should=20 have no separate economic value on their own. To the extent that they = meet these=20 conditions, this exception should include acts which enable browsing as = well as=20 acts of caching to take place, including those which enable transmission = systems=20 to function efficiently, provided that the intermediary does not modify = the=20 information and does not interfere with the lawful use of technology, = widely=20 recognised and used by industry, to obtain data on the use of the = information. A=20 use should be considered lawful where it is authorised by the = rightholder or not=20 restricted by law.

(34) Member States should be given the option of providing for = certain=20 exceptions or limitations for cases such as educational and scientific = purposes,=20 for the benefit of public institutions such as libraries and archives, = for=20 purposes of news reporting, for quotations, for use by people with = disabilities,=20 for public security uses and for uses in administrative and judicial=20 proceedings.

(35) In certain cases of exceptions or limitations, rightholders = should=20 receive fair compensation to compensate them adequately for the use made = of=20 their protected works or other subject-matter. When determining the = form,=20 detailed arrangements and possible level of such fair compensation, = account=20 should be taken of the particular circumstances of each case. When = evaluating=20 these circumstances, a valuable criterion would be the possible harm to = the=20 rightholders resulting from the act in question. In cases where = rightholders=20 have already received payment in some other form, for instance as part = of a=20 licence fee, no specific or separate payment may be due. The level of = fair=20 compensation should take full account of the degree of use of = technological=20 protection measures referred to in this Directive. In certain situations = where=20 the prejudice to the rightholder would be minimal, no obligation for = payment may=20 arise.

(36) The Member States may provide for fair compensation for = rightholders=20 also when applying the optional provisions on exceptions or limitations = which do=20 not require such compensation.

(37) Existing national schemes on reprography, where they exist, do = not=20 create major barriers to the internal market. Member States should be = allowed to=20 provide for an exception or limitation in respect of reprography.

(38) Member States should be allowed to provide for an exception or=20 limitation to the reproduction right for certain types of reproduction = of audio,=20 visual and audio-visual material for private use, accompanied by fair=20 compensation. This may include the introduction or continuation of = remuneration=20 schemes to compensate for the prejudice to rightholders. Although = differences=20 between those remuneration schemes affect the functioning of the = internal=20 market, those differences, with respect to analogue private = reproduction, should=20 not have a significant impact on the development of the information = society.=20 Digital private copying is likely to be more widespread and have a = greater=20 economic impact. Due account should therefore be taken of the = differences=20 between digital and analogue private copying and a distinction should be = made in=20 certain respects between them.

(39) When applying the exception or limitation on private copying, = Member=20 States should take due account of technological and economic = developments, in=20 particular with respect to digital private copying and remuneration = schemes,=20 when effective technological protection measures are available. Such = exceptions=20 or limitations should not inhibit the use of technological measures or = their=20 enforcement against circumvention.

(40) Member States may provide for an exception or limitation for the = benefit=20 of certain non-profit making establishments, such as publicly accessible = libraries and equivalent institutions, as well as archives. However, = this should=20 be limited to certain special cases covered by the reproduction right. = Such an=20 exception or limitation should not cover uses made in the context of = on-line=20 delivery of protected works or other subject-matter. This Directive = should be=20 without prejudice to the Member States' option to derogate from the = exclusive=20 public lending right in accordance with Article 5 of Directive = 92/100/EEC.=20 Therefore, specific contracts or licences should be promoted which, = without=20 creating imbalances, favour such establishments and the disseminative = purposes=20 they serve.

(41) When applying the exception or limitation in respect of = ephemeral=20 recordings made by broadcasting organisations it is understood that a=20 broadcaster's own facilities include those of a person acting on behalf = of and=20 under the responsibility of the broadcasting organisation.

(42) When applying the exception or limitation for non-commercial = educational=20 and scientific research purposes, including distance learning, the=20 non-commercial nature of the activity in question should be determined = by that=20 activity as such. The organisational structure and the means of funding = of the=20 establishment concerned are not the decisive factors in this = respect.

(43) It is in any case important for the Member States to adopt all = necessary=20 measures to facilitate access to works by persons suffering from a = disability=20 which constitutes an obstacle to the use of the works themselves, and to = pay=20 particular attention to accessible formats.

(44) When applying the exceptions and limitations provided for in = this=20 Directive, they should be exercised in accordance with international=20 obligations. Such exceptions and limitations may not be applied in a way = which=20 prejudices the legitimate interests of the rightholder or which = conflicts with=20 the normal exploitation of his work or other subject-matter. The = provision of=20 such exceptions or limitations by Member States should, in particular, = duly=20 reflect the increased economic impact that such exceptions or = limitations may=20 have in the context of the new electronic environment. Therefore, the = scope of=20 certain exceptions or limitations may have to be even more limited when = it comes=20 to certain new uses of copyright works and other subject-matter.

(45) The exceptions and limitations referred to in Article 5(2), (3) = and (4)=20 should not, however, prevent the definition of contractual relations = designed to=20 ensure fair compensation for the rightholders insofar as permitted by = national=20 law.

(46) Recourse to mediation could help users and rightholders to = settle=20 disputes. The Commission, in cooperation with the Member States within = the=20 Contact Committee, should undertake a study to consider new legal ways = of=20 settling disputes concerning copyright and related rights.

(47) Technological development will allow rightholders to make use of = technological measures designed to prevent or restrict acts not = authorised by=20 the rightholders of any copyright, rights related to copyright or the = sui=20 generis right in databases. The danger, however, exists that illegal = activities=20 might be carried out in order to enable or facilitate the circumvention = of the=20 technical protection provided by these measures. In order to avoid = fragmented=20 legal approaches that could potentially hinder the functioning of the = internal=20 market, there is a need to provide for harmonised legal protection = against=20 circumvention of effective technological measures and against provision = of=20 devices and products or services to this effect.

(48) Such legal protection should be provided in respect of = technological=20 measures that effectively restrict acts not authorised by the = rightholders of=20 any copyright, rights related to copyright or the sui generis right in = databases=20 without, however, preventing the normal operation of electronic = equipment and=20 its technological development. Such legal protection implies no = obligation to=20 design devices, products, components or services to correspond to = technological=20 measures, so long as such device, product, component or service does not = otherwise fall under the prohibition of Article 6. Such legal protection = should=20 respect proportionality and should not prohibit those devices or = activities=20 which have a commercially significant purpose or use other than to = circumvent=20 the technical protection. In particular, this protection should not = hinder=20 research into cryptography.

(49) The legal protection of technological measures is without = prejudice to=20 the application of any national provisions which may prohibit the = private=20 possession of devices, products or components for the circumvention of=20 technological measures.

(50) Such a harmonised legal protection does not affect the specific=20 provisions on protection provided for by Directive 91/250/EEC. In = particular, it=20 should not apply to the protection of technological measures used in = connection=20 with computer programs, which is exclusively addressed in that = Directive. It=20 should neither inhibit nor prevent the development or use of any means = of=20 circumventing a technological measure that is necessary to enable acts = to be=20 undertaken in accordance with the terms of Article 5(3) or Article 6 of=20 Directive 91/250/EEC. Articles 5 and 6 of that Directive exclusively = determine=20 exceptions to the exclusive rights applicable to computer programs.

(51) The legal protection of technological measures applies without = prejudice=20 to public policy, as reflected in Article 5, or public security. Member = States=20 should promote voluntary measures taken by rightholders, including the=20 conclusion and implementation of agreements between rightholders and = other=20 parties concerned, to accommodate achieving the objectives of certain = exceptions=20 or limitations provided for in national law in accordance with this = Directive.=20 In the absence of such voluntary measures or agreements within a = reasonable=20 period of time, Member States should take appropriate measures to ensure = that=20 rightholders provide beneficiaries of such exceptions or limitations = with=20 appropriate means of benefiting from them, by modifying an implemented=20 technological measure or by other means. However, in order to prevent = abuse of=20 such measures taken by rightholders, including within the framework of=20 agreements, or taken by a Member State, any technological measures = applied in=20 implementation of such measures should enjoy legal protection.

(52) When implementing an exception or limitation for private copying = in=20 accordance with Article 5(2)(b), Member States should likewise promote = the use=20 of voluntary measures to accommodate achieving the objectives of such = exception=20 or limitation. If, within a reasonable period of time, no such voluntary = measures to make reproduction for private use possible have been taken, = Member=20 States may take measures to enable beneficiaries of the exception or = limitation=20 concerned to benefit from it. Voluntary measures taken by rightholders,=20 including agreements between rightholders and other parties concerned, = as well=20 as measures taken by Member States, do not prevent rightholders from = using=20 technological measures which are consistent with the exceptions or = limitations=20 on private copying in national law in accordance with Article 5(2)(b), = taking=20 account of the condition of fair compensation under that provision and = the=20 possible differentiation between various conditions of use in accordance = with=20 Article 5(5), such as controlling the number of reproductions. In order = to=20 prevent abuse of such measures, any technological measures applied in = their=20 implementation should enjoy legal protection.

(53) The protection of technological measures should ensure a secure=20 environment for the provision of interactive on-demand services, in such = a way=20 that members of the public may access works or other subject-matter from = a place=20 and at a time individually chosen by them. Where such services are = governed by=20 contractual arrangements, the first and second subparagraphs of Article = 6(4)=20 should not apply. Non-interactive forms of online use should remain = subject to=20 those provisions.

(54) Important progress has been made in the international = standardisation of=20 technical systems of identification of works and protected = subject-matter in=20 digital format. In an increasingly networked environment, differences = between=20 technological measures could lead to an incompatibility of systems = within the=20 Community. Compatibility and interoperability of the different systems = should be=20 encouraged. It would be highly desirable to encourage the development of = global=20 systems.

(55) Technological development will facilitate the distribution of = works,=20 notably on networks, and this will entail the need for rightholders to = identify=20 better the work or other subject-matter, the author or any other = rightholder,=20 and to provide information about the terms and conditions of use of the = work or=20 other subject-matter in order to render easier the management of rights = attached=20 to them. Rightholders should be encouraged to use markings indicating, = in=20 addition to the information referred to above, inter alia their = authorisation=20 when putting works or other subject-matter on networks.

(56) There is, however, the danger that illegal activities might be = carried=20 out in order to remove or alter the electronic copyright-management = information=20 attached to it, or otherwise to distribute, import for distribution, = broadcast,=20 communicate to the public or make available to the public works or other = protected subject-matter from which such information has been removed = without=20 authority. In order to avoid fragmented legal approaches that could = potentially=20 hinder the functioning of the internal market, there is a need to = provide for=20 harmonised legal protection against any of these activities.

(57) Any such rights-management information systems referred to above = may,=20 depending on their design, at the same time process personal data about = the=20 consumption patterns of protected subject-matter by individuals and = allow for=20 tracing of on-line behaviour. These technical means, in their technical=20 functions, should incorporate privacy safeguards in accordance with = Directive=20 95/46/EC of the European Parliament and of the Council of 24 October = 1995 on the=20 protection of individuals with regard to the processing of personal data = and the=20 free movement of such data(10).

(58) Member States should provide for effective sanctions and = remedies for=20 infringements of rights and obligations as set out in this Directive. = They=20 should take all the measures necessary to ensure that those sanctions = and=20 remedies are applied. The sanctions thus provided for should be = effective,=20 proportionate and dissuasive and should include the possibility of = seeking=20 damages and/or injunctive relief and, where appropriate, of applying for = seizure=20 of infringing material.

(59) In the digital environment, in particular, the services of=20 intermediaries may increasingly be used by third parties for infringing=20 activities. In many cases such intermediaries are best placed to bring = such=20 infringing activities to an end. Therefore, without prejudice to any = other=20 sanctions and remedies available, rightholders should have the = possibility of=20 applying for an injunction against an intermediary who carries a third = party's=20 infringement of a protected work or other subject-matter in a network. = This=20 possibility should be available even where the acts carried out by the=20 intermediary are exempted under Article 5. The conditions and modalities = relating to such injunctions should be left to the national law of the = Member=20 States.

(60) The protection provided under this Directive should be without = prejudice=20 to national or Community legal provisions in other areas, such as = industrial=20 property, data protection, conditional access, access to public = documents, and=20 the rule of media exploitation chronology, which may affect the = protection of=20 copyright or related rights.

(61) In order to comply with the WIPO Performances and Phonograms = Treaty,=20 Directives 92/100/EEC and 93/98/EEC should be amended,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

OBJECTIVE AND SCOPE

Article 1

Scope

1. This Directive concerns the legal protection of copyright and = related=20 rights in the framework of the internal market, with particular emphasis = on the=20 information society.

2. Except in the cases referred to in Article 11, this Directive = shall leave=20 intact and shall in no way affect existing Community provisions relating = to:

(a) the legal protection of computer programs;

(b) rental right, lending right and certain rights related to = copyright in=20 the field of intellectual property;

(d) the term of protection of copyright and certain related = rights;

(e) the legal protection of databases.

CHAPTER II

RIGHTS AND EXCEPTIONS

Article 2

Reproduction right

Member States shall provide for the exclusive right to authorise or = prohibit=20 direct or indirect, temporary or permanent reproduction by any means and = in any=20 form, in whole or in part:

(a) for authors, of their works;

(b) for performers, of fixations of their performances;

(d) for the producers of the first fixations of films, in respect of = the=20 original and copies of their films;

(e) for broadcasting organisations, of fixations of their broadcasts, = whether=20 those broadcasts are transmitted by wire or over the air, including by = cable or=20 satellite.

Article 3

Right of communication to the public of works and right of making = available=20 to the public other subject-matter

1. Member States shall provide authors with the exclusive right to = authorise=20 or prohibit any communication to the public of their works, by wire or = wireless=20 means, including the making available to the public of their works in = such a way=20 that members of the public may access them from a place and at a time=20 individually chosen by them.

2. Member States shall provide for the exclusive right to authorise = or=20 prohibit the making available to the public, by wire or wireless means, = in such=20 a way that members of the public may access them from a place and at a = time=20 individually chosen by them:

(a) for performers, of fixations of their performances;

(b) for phonogram producers, of their phonograms;

(d) for broadcasting organisations, of fixations of their broadcasts, = whether=20 these broadcasts are transmitted by wire or over the air, including by = cable or=20 satellite.

3. The rights referred to in paragraphs 1 and 2 shall not be = exhausted by any=20 act of communication to the public or making available to the public as = set out=20 in this Article.

Article 4

Distribution right

1. Member States shall provide for authors, in respect of the = original of=20 their works or of copies thereof, the exclusive right to authorise or = prohibit=20 any form of distribution to the public by sale or otherwise.

2. The distribution right shall not be exhausted within the Community = in=20 respect of the original or copies of the work, except where the first = sale or=20 other transfer of ownership in the Community of that object is made by = the=20 rightholder or with his consent.

Article 5

Exceptions and limitations

1. Temporary acts of reproduction referred to in Article 2, which are = transient or incidental [and] an integral and essential part of a = technological=20 process and whose sole purpose is to enable:

(a) a transmission in a network between third parties by an = intermediary,=20 or

(b) a lawful use

of a work or other subject-matter to be made, and which have no = independent=20 economic significance, shall be exempted from the reproduction right = provided=20 for in Article 2.

2. Member States may provide for exceptions or limitations to the=20 reproduction right provided for in Article 2 in the following cases:

(a) in respect of reproductions on paper or any similar medium, = effected by=20 the use of any kind of photographic technique or by some other process = having=20 similar effects, with the exception of sheet music, provided that the=20 rightholders receive fair compensation;

(b) in respect of reproductions on any medium made by a natural = person for=20 private use and for ends that are neither directly nor indirectly = commercial, on=20 condition that the rightholders receive fair compensation which takes = account of=20 the application or non-application of technological measures referred to = in=20 Article 6 to the work or subject-matter concerned;

(c) in respect of specific acts of reproduction made by publicly = accessible=20 libraries, educational establishments or museums, or by archives, which = are not=20 for direct or indirect economic or commercial advantage;

(d) in respect of ephemeral recordings of works made by broadcasting=20 organisations by means of their own facilities and for their own = broadcasts; the=20 preservation of these recordings in official archives may, on the = grounds of=20 their exceptional documentary character, be permitted;

(e) in respect of reproductions of broadcasts made by social = institutions=20 pursuing non-commercial purposes, such as hospitals or prisons, on = condition=20 that the rightholders receive fair compensation.

3. Member States may provide for exceptions or limitations to the = rights=20 provided for in Articles 2 and 3 in the following cases:

(a) use for the sole purpose of illustration for teaching or = scientific=20 research, as long as the source, including the author's name, is = indicated,=20 unless this turns out to be impossible and to the extent justified by = the=20 non-commercial purpose to be achieved;

(b) uses, for the benefit of people with a disability, which are = directly=20 related to the disability and of a non-commercial nature, to the extent = required=20 by the specific disability;

(c) reproduction by the press, communication to the public or making=20 available of published articles on current economic, political or = religious=20 topics or of broadcast works or other subject-matter of the same = character, in=20 cases where such use is not expressly reserved, and as long as the = source,=20 including the author's name, is indicated, or use of works or other=20 subject-matter in connection with the reporting of current events, to = the extent=20 justified by the informatory purpose and as long as the source, = including the=20 author's name, is indicated, unless this turns out to be impossible;

(d) quotations for purposes such as criticism or review, provided = that they=20 relate to a work or other subject-matter which has already been lawfully = made=20 available to the public, that, unless this turns out to be impossible, = the=20 source, including the author's name, is indicated, and that their use is = in=20 accordance with fair practice, and to the extent required by the = specific=20 purpose;

(e) use for the purposes of public security or to ensure the proper=20 performance or reporting of administrative, parliamentary or judicial=20 proceedings;

(f) use of political speeches as well as extracts of public lectures = or=20 similar works or subject-matter to the extent justified by the = informatory=20 purpose and provided that the source, including the author's name, is = indicated,=20 except where this turns out to be impossible;

(g) use during religious celebrations or official celebrations = organised by a=20 public authority;

(h) use of works, such as works of architecture or sculpture, made to = be=20 located permanently in public places;

(i) incidental inclusion of a work or other subject-matter in other=20 material;

(j) use for the purpose of advertising the public exhibition or sale = of=20 artistic works, to the extent necessary to promote the event, excluding = any=20 other commercial use;

(k) use for the purpose of caricature, parody or pastiche;

(l) use in connection with the demonstration or repair of = equipment;

(m) use of an artistic work in the form of a building or a drawing or = plan of=20 a building for the purposes of reconstructing the building;

(n) use by communication or making available, for the purpose of = research or=20 private study, to individual members of the public by dedicated = terminals on the=20 premises of establishments referred to in paragraph 2(c) of works and = other=20 subject-matter not subject to purchase or licensing terms which are = contained in=20 their collections;

(o) use in certain other cases of minor importance where exceptions = or=20 limitations already exist under national law, provided that they only = concern=20 analogue uses and do not affect the free circulation of goods and = services=20 within the Community, without prejudice to the other exceptions and = limitations=20 contained in this Article.

4. Where the Member States may provide for an exception or limitation = to the=20 right of reproduction pursuant to paragraphs 2 and 3, they may provide = similarly=20 for an exception or limitation to the right of distribution as referred = to in=20 Article 4 to the extent justified by the purpose of the authorised act = of=20 reproduction.

5. The exceptions and limitations provided for in paragraphs 1, 2, 3 = and 4=20 shall only be applied in certain special cases which do not conflict = with a=20 normal exploitation of the work or other subject-matter and do not = unreasonably=20 prejudice the legitimate interests of the rightholder.

CHAPTER III

PROTECTION OF TECHNOLOGICAL MEASURES AND RIGHTS-MANAGEMENT = INFORMATION

Article 6

Obligations as to technological measures

1. Member States shall provide adequate legal protection against the=20 circumvention of any effective technological measures, which the person=20 concerned carries out in the knowledge, or with reasonable grounds to = know, that=20 he or she is pursuing that objective.

2. Member States shall provide adequate legal protection against the=20 manufacture, import, distribution, sale, rental, advertisement for sale = or=20 rental, or possession for commercial purposes of devices, products or = components=20 or the provision of services which:

(a) are promoted, advertised or marketed for the purpose of = circumvention of,=20 or

(b) have only a limited commercially significant purpose or use other = than to=20 circumvent, or

(c) are primarily designed, produced, adapted or performed for the = purpose of=20 enabling or facilitating the circumvention of,

any effective technological measures.

3. For the purposes of this Directive, the expression "technological=20 measures" means any technology, device or component that, in the normal = course=20 of its operation, is designed to prevent or restrict acts, in respect of = works=20 or other subject-matter, which are not authorised by the rightholder of = any=20 copyright or any right related to copyright as provided for by law or = the sui=20 generis right provided for in Chapter III of Directive 96/9/EC. = Technological=20 measures shall be deemed "effective" where the use of a protected work = or other=20 subject-matter is controlled by the rightholders through application of = an=20 access control or protection process, such as encryption, scrambling or = other=20 transformation of the work or other subject-matter or a copy control = mechanism,=20 which achieves the protection objective.

4. Notwithstanding the legal protection provided for in paragraph 1, = in the=20 absence of voluntary measures taken by rightholders, including = agreements=20 between rightholders and other parties concerned, Member States shall = take=20 appropriate measures to ensure that rightholders make available to the=20 beneficiary of an exception or limitation provided for in national law = in=20 accordance with Article 5(2)(a), (2)(c), (2)(d), (2)(e), (3)(a), (3)(b) = or=20 (3)(e) the means of benefiting from that exception or limitation, to the = extent=20 necessary to benefit from that exception or limitation and where that=20 beneficiary has legal access to the protected work or subject-matter=20 concerned.

A Member State may also take such measures in respect of a = beneficiary of an=20 exception or limitation provided for in accordance with Article 5(2)(b), = unless=20 reproduction for private use has already been made possible by = rightholders to=20 the extent necessary to benefit from the exception or limitation = concerned and=20 in accordance with the provisions of Article 5(2)(b) and (5), without = preventing=20 rightholders from adopting adequate measures regarding the number of=20 reproductions in accordance with these provisions.

The technological measures applied voluntarily by rightholders, = including=20 those applied in implementation of voluntary agreements, and = technological=20 measures applied in implementation of the measures taken by Member = States, shall=20 enjoy the legal protection provided for in paragraph 1.

The provisions of the first and second subparagraphs shall not apply = to works=20 or other subject-matter made available to the public on agreed = contractual terms=20 in such a way that members of the public may access them from a place = and at a=20 time individually chosen by them.

When this Article is applied in the context of Directives 92/100/EEC = and=20 96/9/EC, this paragraph shall apply mutatis mutandis.

Article 7

Obligations concerning rights-management information

1. Member States shall provide for adequate legal protection against = any=20 person knowingly performing without authority any of the following = acts:

(a) the removal or alteration of any electronic rights-management=20 information;

(b) the distribution, importation for distribution, broadcasting,=20 communication or making available to the public of works or other = subject-matter=20 protected under this Directive or under Chapter III of Directive 96/9/EC = from=20 which electronic rights-management information has been removed or = altered=20 without authority,

if such person knows, or has reasonable grounds to know, that by so = doing he=20 is inducing, enabling, facilitating or concealing an infringement of any = copyright or any rights related to copyright as provided by law, or of = the sui=20 generis right provided for in Chapter III of Directive 96/9/EC.

2. For the purposes of this Directive, the expression = "rights-management=20 information" means any information provided by rightholders which = identifies the=20 work or other subject-matter referred to in this Directive or covered by = the sui=20 generis right provided for in Chapter III of Directive 96/9/EC, the = author or=20 any other rightholder, or information about the terms and conditions of = use of=20 the work or other subject-matter, and any numbers or codes that = represent such=20 information.

The first subparagraph shall apply when any of these items of = information is=20 associated with a copy of, or appears in connection with the = communication to=20 the public of, a work or other subjectmatter referred to in this = Directive or=20 covered by the sui generis right provided for in Chapter III of = Directive=20 96/9/EC.

CHAPTER IV

COMMON PROVISIONS

Article 8

Sanctions and remedies

1. Member States shall provide appropriate sanctions and remedies in = respect=20 of infringements of the rights and obligations set out in this Directive = and=20 shall take all the measures necessary to ensure that those sanctions and = remedies are applied. The sanctions thus provided for shall be = effective,=20 proportionate and dissuasive.

2. Each Member State shall take the measures necessary to ensure that = rightholders whose interests are affected by an infringing activity = carried out=20 on its territory can bring an action for damages and/or apply for an = injunction=20 and, where appropriate, for the seizure of infringing material as well = as of=20 devices, products or components referred to in Article 6(2).

3. Member States shall ensure that rightholders are in a position to = apply=20 for an injunction against intermediaries whose services are used by a = third=20 party to infringe a copyright or related right.

Article 9

Continued application of other legal provisions

This Directive shall be without prejudice to provisions concerning in = particular patent rights, trade marks, design rights, utility models,=20 topographies of semi-conductor products, type faces, conditional access, = access=20 to cable of broadcasting services, protection of national treasures, = legal=20 deposit requirements, laws on restrictive practices and unfair = competition,=20 trade secrets, security, confidentiality, data protection and privacy, = access to=20 public documents, the law of contract.

Article 10

Application over time

1. The provisions of this Directive shall apply in respect of all = works and=20 other subject-matter referred to in this Directive which are, on 22 = December=20 2002, protected by the Member States' legislation in the field of = copyright and=20 related rights, or which meet the criteria for protection under the = provisions=20 of this Directive or the provisions referred to in Article 1(2).

2. This Directive shall apply without prejudice to any acts concluded = and=20 rights acquired before 22 December 2002.

Article 11

Technical adaptations

1. Directive 92/100/EEC is hereby amended as follows:

(a) Article 7 shall be deleted;

(b) Article 10(3) shall be replaced by the following: "3. The = limitations=20 shall only be applied in certain special cases which do not conflict = with a=20 normal exploitation of the subject-matter and do not unreasonably = prejudice the=20 legitimate interests of the rightholder."

2. Article 3(2) of Directive 93/98/EEC shall be replaced by the = following:=20 "2. The rights of producers of phonograms shall expire 50 years after = the=20 fixation is made. However, if the phonogram has been lawfully published = within=20 this period, the said rights shall expire 50 years from the date of the = first=20 lawful publication. If no lawful publication has taken place within the = period=20 mentioned in the first sentence, and if the phonogram has been lawfully=20 communicated to the public within this period, the said rights shall = expire 50=20 years from the date of the first lawful communication to the public.

However, where through the expiry of the term of protection granted = pursuant=20 to this paragraph in its version before amendment by Directive = 2001/29/EC of the=20 European Parliament and of the Council of 22 May 2001 on the = harmonisation of=20 certain aspects of copyright and related rights in the information = society(11)=20 the rights of producers of phonograms are no longer protected on 22 = December=20 2002, this paragraph shall not have the effect of protecting those = rights=20 anew."

Article 12

Final provisions

1. Not later than 22 December 2004 and every three years thereafter, = the=20 Commission shall submit to the European Parliament, the Council and the = Economic=20 and Social Committee a report on the application of this Directive, in = which,=20 inter alia, on the basis of specific information supplied by the Member = States,=20 it shall examine in particular the application of Articles 5, 6 and 8 in = the=20 light of the development of the digital market. In the case of Article = 6, it=20 shall examine in particular whether that Article confers a sufficient = level of=20 protection and whether acts which are permitted by law are being = adversely=20 affected by the use of effective technological measures. Where = necessary, in=20 particular to ensure the functioning of the internal market pursuant to = Article=20 14 of the Treaty, it shall submit proposals for amendments to this=20 Directive.

2. Protection of rights related to copyright under this Directive = shall leave=20 intact and shall in no way affect the protection of copyright.

3. A contact committee is hereby established. It shall be composed of = representatives of the competent authorities of the Member States. It = shall be=20 chaired by a representative of the Commission and shall meet either on = the=20 initiative of the chairman or at the request of the delegation of a = Member=20 State.

4. The tasks of the committee shall be as follows:

(a) to examine the impact of this Directive on the functioning of the = internal market, and to highlight any difficulties;

(b) to organise consultations on all questions deriving from the = application=20 of this Directive;

(c) to facilitate the exchange of information on relevant = developments in=20 legislation and case-law, as well as relevant economic, social, cultural = and=20 technological developments;

(d) to act as a forum for the assessment of the digital market in = works and=20 other items, including private copying and the use of technological=20 measures.

Article 13

Implementation

1. Member States shall bring into force the laws, regulations and=20 administrative provisions necessary to comply with this Directive before = 22=20 December 2002. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a = reference to=20 this Directive or shall be accompanied by such reference on the occasion = of=20 their official publication. The methods of making such reference shall = be laid=20 down by Member States.

2. Member States shall communicate to the Commission the text of the=20 provisions of domestic law which they adopt in the field governed by = this=20 Directive.

Article 14

Entry into force

This Directive shall enter into force on the day of its publication = in the=20 Official Journal of the European Communities.

Article 15

Addressees

This Directive is addressed to the Member States.

Done at Brussels, 22 May 2001.

For the European Parliament

The President

N. Fontaine

For the Council

The President

M. Winberg

(1) OJ C 108, 7.4.1998, p. 6 and

OJ C 180, 25.6.1999, p. 6.

(2) OJ C 407, 28.12.1998, p. 30.

(3) Opinion of the European Parliament of 10 February 1999 (OJ C 150, = 28.5.1999, p. 171), Council Common Position of 28 September 2000 (OJ C = 344,=20 1.12.2000, p. 1) and Decision of the European Parliament of 14 February = 2001=20 (not yet published in the Official Journal). Council Decision of 9 April = 2001.

(4) OJ L 178, 17.7.2000, p. 1.

(5) Council Directive 91/250/EEC of 14 May 1991 on the legal = protection of=20 computer programs (OJ L 122, 17.5.1991, p. 42). Directive as amended by=20 Directive 93/98/EEC.

(6) Council Directive 92/100/EEC of 19 November 1992 on rental right = and=20 lending right and on certain rights related to copyright in the field of = intellectual property (OJ L 346, 27.11.1992, p. 61). Directive as = amended by=20 Directive 93/98/EEC.

(7) Council Directive 93/83/EEC of 27 September 1993 on the = coordination of=20 certain rules concerning copyright and rights related to copyright = applicable to=20 satellite broadcasting and cable retransmission (OJ L 248, 6.10.1993, p. = 15).

(8) Council Directive 93/98/EEC of 29 October 1993 harmonising the = term of=20 protection of copyright and certain related rights (OJ L 290, = 24.11.1993, p.=20 9).

(9) Directive 96/9/EC of the European Parliament and of the Council = of 11=20 March 1996 on the legal protection of databases (OJ L 77, 27.3.1996, p. = 20).

(10) OJ L 281, 23.11.1995, p. 31.

(11) OJ L 167, 22.6.2001, p. 10.