EN Official Journal of the European Communities 22.6.2001L 167/10
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.
(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.
EN Official Journal of the European Communities22.6.2001 L 167/11
(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 ‘ondemand’
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 subjectmatter
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’) (1
), 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 (2), 92/
100/EEC (3
), 93/83/EEC (4
), 93/98/EEC (5
) and 96/9/
EC (6
), 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.
(1
) OJ L 178, 17.7.2000, p. 1.
(2
) 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.
(3
) 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.
(4) 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).
(5
) 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).
(6) 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).
EN Official Journal of the European Communities 22.6.2001L 167/12
(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 subjectmatter
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,
EN Official Journal of the European Communities22.6.2001 L 167/13
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 audiovisual
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 organ-
isation.
(42) When applying the exception or limitation for noncommercial
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.
EN Official Journal of the European Communities 22.6.2001L 167/14
(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.
EN Official Journal of the European Communities22.6.2001 L 167/15
(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 (1).
(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.(1) OJ L 281, 23.11.1995, p. 31.
EN Official Journal of the European Communities 22.6.2001L 167/16
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 subjectmatter
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;
EN Official Journal of the European Communities22.6.2001 L 167/17
(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 RIGHTSMANAGEMENT
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 subjectmatter,
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 subjectmatter
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),
EN Official Journal of the European Communities 22.6.2001L 167/18
(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 ‘rightsmanagement
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.
EN Official Journal of the European Communities22.6.2001 L 167/19
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 (*) 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.
(*) OJ L 167, 22.6.2001, p. 10.’
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 diffi-
culties;
(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 develop-
ments;
(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