Copyright law of the European Union
Encyclopedia
The copyright law of the European Union has arisen in an attempt to harmonise the differing copyright laws
of European Union
member states. It consists of a number of directives, which the member states are obliged to enact into their national laws, and by the judgments of the Court of Justice of the European Union
, that is the European Court of Justice
and the General Court.
on 9 September 1886: all European Union Member States are signatories of the Berne Convention, and compliance with its dispositions is now obligatory before accession. The first major step taken by the European Economic Community
to harmonise copyright laws came with the decision to apply common standard for the copyright protection of computer programs, enacted in the Computer Programs Directive in 1991. A common term of copyright protection, 70 years from the death of the author was established in 1993 as the Copyright Duration Directive.
The implementation of directives on copyright has been rather more controversial than for many other subjects, as can be seen by the six judgments for non-transposition of the Copyright Directive
. Traditionally, copyright laws vary considerably between member states, particularly between common law
jurisdictions (Cyprus, Ireland, Malta and the United Kingdom) and civil law
countries. Changes in copyright law have also become linked to protests against the World Trade Organization
and globalization
in general.
covering copyright were made under the non-discrimination provision of Article 6 EC (formerly Art. 7), and under the provisions of Article 36 which allows for restrictions on trade between Member States if justified by the protection of industrial and commercial property (including copyright). The directives were made under the internal market provisions of the treaties, notably Article 95 EC (formerly Art. 100a)
Moral rights are usually considered to be a matter for the national laws of the Member States, although some countries classify some of the above rights, especially the right of communication to the public, among the moral rights of the author rather than under his rights of exploitation.
The rights of performers last for fifty years from the distribution or communication of the performance, or for fifty years from the performance itself if it had never been communicated to the public during this period. The rights of phonogram producers last for fifty years after publication of the phonogram, or for fifty years after its communication to the public if it had never been published during that period, or for fifty years after its creation if it had never been communicated to the public. The rights of film producers last for fifty years after the communication of the film to the public, or for fifty years after its creation if it had never been communicated to the public during that period. The rights of broadcasting organisations last for fifty years after the first transmission of a broadcast. The European Commission proposed this be extended to 95 years
and following this suggestion the European Parliament passed legislation to increase the term to 70 years.
Where a work enjoyed a longer period of protection under national law on 1 July 1995, its period of protection is not shortened. Otherwise, these terms of protection apply to all works which were protected in a Member State of the European Economic Area
on 1 July 1995. This provision had the effect of restoring the copyrights in certain works which had entered the public domain in countries which shorter copyright terms. The EU Copyright Directive modified the term of protection of phonograms, calculating from the date of publication instead of from an earlier date of communication to the public, but did not restore the protection of phonograms which had entered the public domain under the former rules. All periods of protection run until 31 December of the year in which they expire.
name droit de suite
, is personal to the artist and can only be transferred by inheritance. It is calculated as a proportion of the resale price (net of tax), which varies between 4 or 5 percent for the portion of the resale price up to EUR 50,000 and 0.25% for the portion of the resale price above EUR 500,000. The total royalty is limited at EUR 12,500, equivalent to a resale price of EUR 2,000,000. Member States may choose to exempt sales of less than EUR 3000 from royalty. Works of art which are covered by this resale right are "works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided they are made by the artist herself or himself or are copies which have been made in limited numbers by the artist or under his or her authority."
protection for databases which do not meet the criterion of originality for copyright protection. It is specifically intended to protect "the investment of considerable human, technical and financial resources" in creating databases (para. 7 of the preamble), whereas the copyright laws of many Member States specifically exclude effort and labour from the criteria for copyright protection. To qualify, the database must show "qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents". Their creators have the right "to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database." This is taken to include the repeated extraction of insubstantial parts of the contents if this conflicts with the normal exploitation of the database or unreasonably prejudices the legitimate interests of the creator of the database.
Member States may limit this right in the following cases:
Database rights last for fifteen years from:
Member states can implement other limitations from the list in Copyright Directive
Article 5, or retain limitations which were already in force on 22 June 2001. Permitted limitations are:
No new limitations may come into force after 22 June 2001 except those in the permitted limitations given in the Copyright Directive. Limitations may 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". However it was agreed at the time of drafting the WIPO Copyright and Performances and Phonograms Treaties that this wording "neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention."
, evidence
, interlocutory measures, seizure
and injunction
s, damages
and costs and judicial publication. Germany recognizes the the so-called whereby the burden of proof is on the alleged infringer in an infringement lawsuit.
that collect royalties as part of compulsory licensing
in the European Union
(EU) usually hold monopolies in their respective national markets. Some countries create a statutory monopoly, while other recognize effective monopolies through regulations. In Austria, the Society of Authors, Composers and Publishers has a statutory monopoly. Germany recognizes GEMA
as an effective monopoly.
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
of European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
member states. It consists of a number of directives, which the member states are obliged to enact into their national laws, and by the judgments of the Court of Justice of the European Union
Court of Justice of the European Union
The Court of Justice of the European Union is the institution of the European Union which encompasses the whole judiciary. Seated in Luxembourg, it has three sub-courts; the European Court of Justice, the General Court and the Civil Service Tribunal.The institution was originally established in...
, that is the European Court of Justice
European Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
and the General Court.
History
Attempts to harmonise copyright law in Europe (and beyond) can be dated to the signature of the Berne Convention for the Protection of Literary and Artistic WorksBerne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...
on 9 September 1886: all European Union Member States are signatories of the Berne Convention, and compliance with its dispositions is now obligatory before accession. The first major step taken by the European Economic Community
European Economic Community
The European Economic Community The European Economic Community (EEC) The European Economic Community (EEC) (also known as the Common Market in the English-speaking world, renamed the European Community (EC) in 1993The information in this article primarily covers the EEC's time as an independent...
to harmonise copyright laws came with the decision to apply common standard for the copyright protection of computer programs, enacted in the Computer Programs Directive in 1991. A common term of copyright protection, 70 years from the death of the author was established in 1993 as the Copyright Duration Directive.
The implementation of directives on copyright has been rather more controversial than for many other subjects, as can be seen by the six judgments for non-transposition of the Copyright Directive
Copyright Directive
The Copyright Directive , is a directive of the European Union enacted to implement the WIPO...
. Traditionally, copyright laws vary considerably between member states, particularly between common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions (Cyprus, Ireland, Malta and the United Kingdom) and civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
countries. Changes in copyright law have also become linked to protests against the World Trade Organization
World Trade Organization
The World Trade Organization is an organization that intends to supervise and liberalize international trade. The organization officially commenced on January 1, 1995 under the Marrakech Agreement, replacing the General Agreement on Tariffs and Trade , which commenced in 1948...
and globalization
Globalization
Globalization refers to the increasingly global relationships of culture, people and economic activity. Most often, it refers to economics: the global distribution of the production of goods and services, through reduction of barriers to international trade such as tariffs, export fees, and import...
in general.
European Union treaties
The first judgments of the European Court of JusticeEuropean Court of Justice
The Court can sit in plenary session, as a Grand Chamber of 13 judges, or in chambers of three or five judges. Plenary sitting are now very rare, and the court mostly sits in chambers of three or five judges...
covering copyright were made under the non-discrimination provision of Article 6 EC (formerly Art. 7), and under the provisions of Article 36 which allows for restrictions on trade between Member States if justified by the protection of industrial and commercial property (including copyright). The directives were made under the internal market provisions of the treaties, notably Article 95 EC (formerly Art. 100a)
Protected rights
The following rights are protected by European Union law:- right of reproduction for authors, performers, producers of phonograms and films and broadcasting organisations
- right of communication to the public for authors, performers, producers of phonograms and films and broadcasting organisations
- right of distribution for authors and for performers, producers of phonograms and films and broadcasting organisations
- right of fixation for performers and broadcasting organisations
- right of rental and/or lending for authors, performers, producers of phonograms and films, with an associated right of equitable remuneration for lending and/or rental for authors and performers
- right of broadcasting for performers, producers of phonograms and broadcasting organisations
- right of communication to the public by satellite for authors, performers, producers of phonograms and broadcasting organisations
- right of computer program reproduction, distribution and rental for authors
Moral rights are usually considered to be a matter for the national laws of the Member States, although some countries classify some of the above rights, especially the right of communication to the public, among the moral rights of the author rather than under his rights of exploitation.
Duration of protection
The rights of authors are protected within their lifetime and for seventy years after their death; this includes the resale rights of artists. For films and other audiovisual works, the seventy year period applies from the last death among the following people, whether or not they are considered to be authors of the work by the national law of the Member State: the principal director (who is always considered to be an author of the audiovisual work), the author of the screenplay, the author of the dialogue and the composer of music specifically created for use in the cinematographic or audiovisual work.The rights of performers last for fifty years from the distribution or communication of the performance, or for fifty years from the performance itself if it had never been communicated to the public during this period. The rights of phonogram producers last for fifty years after publication of the phonogram, or for fifty years after its communication to the public if it had never been published during that period, or for fifty years after its creation if it had never been communicated to the public. The rights of film producers last for fifty years after the communication of the film to the public, or for fifty years after its creation if it had never been communicated to the public during that period. The rights of broadcasting organisations last for fifty years after the first transmission of a broadcast. The European Commission proposed this be extended to 95 years
European Union 95 year recording copyright extension proposal
The European Union Commission has proposed on 16 July 2008 to extend the length of the copyright on recordings to 95 years from 50 years. The European Parliament modified the proposal to be 70 years instead and passed it on 23 April 2009...
and following this suggestion the European Parliament passed legislation to increase the term to 70 years.
Where a work enjoyed a longer period of protection under national law on 1 July 1995, its period of protection is not shortened. Otherwise, these terms of protection apply to all works which were protected in a Member State of the European Economic Area
European Economic Area
The European Economic Area was established on 1 January 1994 following an agreement between the member states of the European Free Trade Association and the European Community, later the European Union . Specifically, it allows Iceland, Liechtenstein and Norway to participate in the EU's Internal...
on 1 July 1995. This provision had the effect of restoring the copyrights in certain works which had entered the public domain in countries which shorter copyright terms. The EU Copyright Directive modified the term of protection of phonograms, calculating from the date of publication instead of from an earlier date of communication to the public, but did not restore the protection of phonograms which had entered the public domain under the former rules. All periods of protection run until 31 December of the year in which they expire.
Resale right
The Resale Rights Directive created a right for the creators of works of art to participate in the proceeds of the resale of their work. This right, which is sometime known by its FrenchFrench language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
name droit de suite
Droit de suite
Droit de suite is a right granted to artists or their heirs, in some jurisdictions, to receive a fee on the resale of their works of art...
, is personal to the artist and can only be transferred by inheritance. It is calculated as a proportion of the resale price (net of tax), which varies between 4 or 5 percent for the portion of the resale price up to EUR 50,000 and 0.25% for the portion of the resale price above EUR 500,000. The total royalty is limited at EUR 12,500, equivalent to a resale price of EUR 2,000,000. Member States may choose to exempt sales of less than EUR 3000 from royalty. Works of art which are covered by this resale right are "works of graphic or plastic art such as pictures, collages, paintings, drawings, engravings, prints, lithographs, sculptures, tapestries, ceramics, glassware and photographs, provided they are made by the artist herself or himself or are copies which have been made in limited numbers by the artist or under his or her authority."
Database rights
The Database Directive created a sui generisSui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
protection for databases which do not meet the criterion of originality for copyright protection. It is specifically intended to protect "the investment of considerable human, technical and financial resources" in creating databases (para. 7 of the preamble), whereas the copyright laws of many Member States specifically exclude effort and labour from the criteria for copyright protection. To qualify, the database must show "qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents". Their creators have the right "to prevent extraction and/or re-utilization of the whole or of a substantial part, evaluated qualitatively and/or quantitatively, of the contents of that database." This is taken to include the repeated extraction of insubstantial parts of the contents if this conflicts with the normal exploitation of the database or unreasonably prejudices the legitimate interests of the creator of the database.
Member States may limit this right in the following cases:
- extraction for private use from a non-electronic database;
- extraction for the purposes of teaching or research, to the extent justified by the non-commercial purpose;
- extraction and/or reutilization for the purposes of public security or an administrative or judicial procedure.
Database rights last for fifteen years from:
- the "completion" of the database, that is to say the point at which the criterion of substantial investment is fulfilled, or from
- the date at which the database is made available to the public,whichever is the later. The protection period runs until 31 December of the year in which it expires. If there is a "substantial change" in the database which would be qualified as a "substantial new investment", a new protection period is granted for the resulting database.
Limitations
Temporary copying which is the result of the transmission of a work or of its legal use is not covered by the exclusive right of reproduction.Member states can implement other limitations from the list in Copyright Directive
Copyright Directive
The Copyright Directive , is a directive of the European Union enacted to implement the WIPO...
Article 5, or retain limitations which were already in force on 22 June 2001. Permitted limitations are:
- paper reproductions by photocopying or similar methods, except of sheet music, if there is compensation for rightsholders;
- reproductions made for private and non-commercial use if there is compensation for rightholders;
- reproductions by public libraries, educational institutions or archives for non-commercial use;
- preservation of recordings of broadcasts in official archives;
- reproductions of broadcasts by social, non-commercial institutions such as hospitals and prisons, if there is compensation to rightholders;
- use for illustration for teaching or scientific research, to the extent justified by the non-commercial purpose;
- uses directly related to a disability, to the extent justified by the disability;
- press reviews and news reporting;
- quotations for the purposes of criticism or review;
- uses for the purposes of public security or in administrative, parliamentary or judicial proceedings;
- uses of political speeches and extracts of public lectures, to the extent justified by public information;
- uses during religious or official celebrations;
- uses of works, such as architecture or sculpture, which are located permanently in public places;
- incidental inclusion in another work;
- use for the advertisement of the public exhibition or sale of art;
- caricature, parody or pastiche;
- use in connection with the demonstration or repair of equipment;
- use of a protected work (e.g., plans) for the reconstruction of a building;
- communication of works to the public within the premises of public libraries, educational institutions, museums or archives.
No new limitations may come into force after 22 June 2001 except those in the permitted limitations given in the Copyright Directive. Limitations may 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". However it was agreed at the time of drafting the WIPO Copyright and Performances and Phonograms Treaties that this wording "neither reduces nor extends the scope of applicability of the limitations and exceptions permitted by the Berne Convention."
Protection of rights
The Enforcement Directive covers the remedies that are available in the civil courts and harmonizes the rules on standingStanding (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
, evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
, interlocutory measures, seizure
Seizure
An epileptic seizure, occasionally referred to as a fit, is defined as a transient symptom of "abnormal excessive or synchronous neuronal activity in the brain". The outward effect can be as dramatic as a wild thrashing movement or as mild as a brief loss of awareness...
and injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
s, damages
Damages
In law, damages is an award, typically of money, to be paid to a person as compensation for loss or injury; grammatically, it is a singular noun, not plural.- Compensatory damages :...
and costs and judicial publication. Germany recognizes the the so-called whereby the burden of proof is on the alleged infringer in an infringement lawsuit.
Monopolies
Copyright societiesCopyright collective
A copyright collective is a body created by copyright law or private agreement which engages in collective rights management...
that collect royalties as part of compulsory licensing
Compulsory license
A compulsory license, also known as statutory license or mandatory collective management, provides that the owner of a patent or copyright licenses the use of their rights against payment either set by law or determined through some form of arbitration.- Copyright law :In a number of countries...
in the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
(EU) usually hold monopolies in their respective national markets. Some countries create a statutory monopoly, while other recognize effective monopolies through regulations. In Austria, the Society of Authors, Composers and Publishers has a statutory monopoly. Germany recognizes GEMA
Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte
Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte is a performance rights organization from Germany. It is the only such institution in Germany and a member of BIEM and CISAC...
as an effective monopoly.
External links
- Summaries of EU legislation > Internal market > Businesses in the internal market > Intellectual property > Copyright and related rights
- European Commission > Internal Market > Copyright > Documents
- List of EU copyright Durations
Treaties
- Berne Convention for the Protection of Literary and Artistic Works (from WIPO)
- Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations
- Agreement on Trade-Related Aspects of Intellectual Property Rights (from WTO)
- WIPO Copyright Treaty (from WIPO)
- WIPO Performers and Phonograms Treaty (from WIPO)