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32001L0029

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 the information society

Official Journal L 167 ,
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
the information society

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in
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
Treaty(3),

Whereas:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(42) When applying the exception or limitation for non-commercial educational
and scientific research purposes, including distance learning, the
non-commercial nature of the activity in question should be determined by that
activity as such. The organisational structure and the means of funding of the
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
measures to facilitate access to works by persons suffering from a disability
which constitutes an obstacle to the use of the works themselves, and to pay
particular attention to accessible formats.

(44) When applying the exceptions and limitations provided for in this
Directive, they should be exercised in accordance with international
obligations. Such exceptions and limitations may not be applied in a way which
prejudices the legitimate interests of the rightholder or which conflicts with
the normal exploitation of his work or other subject-matter. The provision of
such exceptions or limitations by Member States should, in particular, duly
reflect the increased economic impact that such exceptions or limitations may
have in the context of the new electronic environment. Therefore, the scope of
certain exceptions or limitations may have to be even more limited when it comes
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)
should not, however, prevent the definition of contractual relations designed to
ensure fair compensation for the rightholders insofar as permitted by national
law.

(46) Recourse to mediation could help users and rightholders to settle
disputes. The Commission, in cooperation with the Member States within the
Contact Committee, should undertake a study to consider new legal ways of
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
the rightholders of any copyright, rights related to copyright or the sui
generis right in databases. The danger, however, exists that illegal activities
might be carried out in order to enable or facilitate the circumvention of the
technical protection provided by these measures. In order to avoid fragmented
legal approaches that could potentially hinder the functioning of the internal
market, there is a need to provide for harmonised legal protection against
circumvention of effective technological measures and against provision of
devices and products or services to this effect.

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

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

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

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

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

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

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

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

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

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

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

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

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

(61) In order to comply with the WIPO Performances and Phonograms Treaty,
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
rights in the framework of the internal market, with particular emphasis on the
information society.

2. Except in the cases referred to in Article 11, this Directive shall leave
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
the field of intellectual property;

(c) copyright and related rights applicable to broadcasting of programmes by
satellite and cable retransmission;

(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
direct or indirect, temporary or permanent reproduction by any means and in any
form, in whole or in part:

(a) for authors, of their works;

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

(c) for phonogram producers, of their phonograms;

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

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

Article 3

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

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

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

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

(b) for phonogram producers, of their phonograms;

(c) for the producers of the first fixations of films, of the original and
copies of their films;

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

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

Article 4

Distribution right

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

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

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
process and whose sole purpose is to enable:

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

(b) a lawful use

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(j) use for the purpose of advertising the public exhibition or sale of
artistic works, to the extent necessary to promote the event, excluding any
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
a building for the purposes of reconstructing the building;

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

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

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

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

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
circumvention of any effective technological measures, which the person
concerned carries out in the knowledge, or with reasonable grounds to know, that
he or she is pursuing that objective.

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

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

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

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

any effective technological measures.

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

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

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

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

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

When this Article is applied in the context of Directives 92/100/EEC and
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
person knowingly performing without authority any of the following acts:

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

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

if such person knows, or has reasonable grounds to know, that by so doing he
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
generis right provided for in Chapter III of Directive 96/9/EC.

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

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

CHAPTER IV

COMMON PROVISIONS

Article 8

Sanctions and remedies

1. Member States shall provide appropriate sanctions and remedies in respect
of infringements of the rights and obligations set out in this Directive and
shall take all the measures necessary to ensure that those sanctions and
remedies are applied. The sanctions thus provided for shall be effective,
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
on its territory can bring an action for damages and/or apply for an injunction
and, where appropriate, for the seizure of infringing material as well as of
devices, products or components referred to in Article 6(2).

3. Member States shall ensure that rightholders are in a position to apply
for an injunction against intermediaries whose services are used by a third
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,
topographies of semi-conductor products, type faces, conditional access, access
to cable of broadcasting services, protection of national treasures, legal
deposit requirements, laws on restrictive practices and unfair competition,
trade secrets, security, confidentiality, data protection and privacy, access to
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
other subject-matter referred to in this Directive which are, on 22 December
2002, protected by the Member States' legislation in the field of copyright and
related rights, or which meet the criteria for protection under the provisions
of this Directive or the provisions referred to in Article 1(2).

2. This Directive shall apply without prejudice to any acts concluded and
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
shall only be applied in certain special cases which do not conflict with a
normal exploitation of the subject-matter and do not unreasonably prejudice the
legitimate interests of the rightholder."

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

However, where through the expiry of the term of protection granted pursuant
to this paragraph in its version before amendment by 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 the information society(11)
the rights of producers of phonograms are no longer protected on 22 December
2002, this paragraph shall not have the effect of protecting those rights
anew."

Article 12

Final provisions

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

2. Protection of rights related to copyright under this Directive shall leave
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
chaired by a representative of the Commission and shall meet either on the
initiative of the chairman or at the request of the delegation of a Member
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
of this Directive;

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

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

Article 13

Implementation

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

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

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

Article 14

Entry into force

This Directive shall enter into force on the day of its publication in the
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,
1.12.2000, p. 1) and Decision of the European Parliament of 14 February 2001
(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
computer programs (OJ L 122, 17.5.1991, p. 42). Directive as amended by
Directive 93/98/EEC.

(6) Council Directive 92/100/EEC of 19 November 1992 on rental right and
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
Directive 93/98/EEC.

(7) Council Directive 93/83/EEC of 27 September 1993 on the coordination of
certain rules concerning copyright and rights related to copyright applicable to
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
protection of copyright and certain related rights (OJ L 290, 24.11.1993, p.
9).

(9) Directive 96/9/EC of the European Parliament and of the Council of 11
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.

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