Introduction
The digital technology and the Internet have created some new ways
to exploit the copyrighted works and other subject matter.
Traditionally, copyrighted works and other subject matter are published
in the form of papers, films, and tapes, or communicated by radio, and
television, etc. Because of the digital technology and the Internet,
however, almost all of the copyrighted works, such as computer software,
articles, stories, music, photos, and performances can be digitalized
and provided directly on line. All of this totally changed the scenario
or backgrounds in which the traditional copyright system is existed.
In order to resolve the problems or meet the challenges brought by
the digital technology and the Internet, many important industrialized
countries, such as the United States, the European Union, conducted
detailed studies on the new technology and its impact on the copyright
system, and published their reports in 1995 and 1996. For example, in
September 1995, the United States published intellectual Property and
the National Information Infrastructure?[3] in July 1995 and November
1996, the European Commission respectively published Green Paper on
Copyright and Related Rights in the Information Society?and follow-up to
the Green Paper on Copyright and Related Rights in the Information
Society?[4]
While some important industrialized countries were studying the
impact on copyright system by the digital technology and the Internet,
the World Intellectual Property Organization (WIPO) also put the
questions on its agenda. In December 1996, WIPO diplomatic conference
adopted WIPO Copyright Treaty (WCT) and WIPO Performance and Phonogram
Treaty (WPPT). The two new treaties are intended to resolve the problems
brought by the digital technology and the Internet at the international
level. In sense of this striking character, the international press,
which followed the diplomatic conference with great attention, simply
referred the two treaties as internet treaties?[5]
The copyright protection in the worldwide Internet is not a question
for one or several countries. Because there is no national boundary in
the Internet, because the copyrighted works and subject matter can be
communicated to every corner of the world, the problems of copyright
protection in the Internet must be resolved at global level. In this
way, WCT and WPPT established some basic principles or provisions with
respect to the copyright protection in the Internet. In order to ratify
or access to the treaties, member countries must implement these basic
principles or provisions into their legislations. This situation, that
first at international legislation and then at national legislations
also indicates that the copyright problem in digital environment must be
resolved internationally.
After 1997, there is a wave of national or regional legislations to
implement WCT and WPPT worldwide. In October 1998, the United States
passed digital Millennium Copyright Act?(hereafter as DMCA).[6] In June
1997 and June 1999, Japan twice amended its copyright law.[7] In April
2001, the Parliament of European Union passed directive 2001/29/EC of
the European Parliament and of the Council on the Harmonization of
Certain Aspect of Copyright and Related Rights in the Information
Society?(hereafter as the Copyright Directive). According the provisions
related, member states shall bring into force their laws, regulations
and administrative provisions necessary to comply with the Directive
before 22 December 2002, and the provisions of the Directive shall apply
to the works and other subject matters protected by member states on 22
December 2002.[8]
This comment is going to discuss some questions on the EU Copyright
Directive. The related questions are reproduction right? Right of
communication or making available to the public? Exceptions and
limitations? The protection of technological measures? and the
protection of rights management information? Although there is a
provision about distribution right?in WCT, WPPT, and the EU Copyright
Directive, it has little to do with the copyright protection in the
Internet. Therefore, this comment will not cover this question. Besides,
in order to further study the questions related and to achieve a
comparison effect, WCT, WPPT, and DMCA will be occasionally cited.
2. Reproduction Right
One of the basic ways to exploit the copyrighted works and other
subject matter is to reproduce the works and subject matter. Because of
the advent of the digital technology and the Internet, however, the
concept of reproduction has changed dramatically. For example, almost
all of the copyrighted works and other subject matter now can be
digitalized and stored in CDs and computer. While a work is communicated
in the Internet, there are also a series of the reproductions taking
place, including the reproductions made by uploading and downloading the
works, and many temporary reproductions automatically made by Internet
servers and computers. As a result, the content of the reproduction has
changed a great deal, and the reproduction should be redefined in light
of the new technology.
There is a provision about reproduction right in article 9 of Berne
Convention for the Protection of Literary and Artistic Works. It
provides that authors of literary and artistic works protected by this
Convention shall have the exclusive right of authorizing the
reproduction of these works, in any manner or form.?According to this
provision, the reproduction of copyrighted works can be made in any
manner or form. Surely this is a very broad definition that can be
interpreted to cover any direct or indirect, permanent or temporary
reproduction in the digital environment.
The drafts of WCT and WPPT had tried to clarify the reproduction
right in light of the new technology.[9] Because of the different views
concerning the exceptions and limitations of the reproduction right,
however, the WIPO Diplomatic conference in December 1996 only adopted
some agreed statements concerning reproduction right. For example, an
agreed statement for WCT is as follows: the reproduction rights, as set
out in Article 9 of Berne Convention, and the exceptions permitted
thereunder, fully apply in the digital environment, in particular to the
use of works in digital form. It is understood that the storage of a
works in digital form in an electronic medium constitutes a reproduction
within the meaning of Article 9 of the Berne Convention.?A similar
agreed statement was also adopted for WPPT.
The DMCA of the United States does not further clarify the
reproduction right because Americans believe that the reproduction right
in their current copyright law can be interpreted into the digital
environment. In contrasting with DMCA, the EU Copyright Directive
clarifies that the reproduction includes direct or indirect, temporary
or permanent reproduction by any means and in any form, in whole or in
part. According to Article 2 of the Directive, such a reproduction right
is to be granted to authors with respect to their works, to performers
with respect to the fixation of their performances, to phonogram
producers with respect to their phonograms, to producers of film with
respect to the original and copies of their films, and to broadcasting
organizations with respect to the fixations of their broadcasts. As for
the broadcasting organizations, it is irrelevant whether those
broadcasts are transmitted by wire or over the air, including by cable
or satellite.
It is no doubt that this is a very broad definition that covers any
kind reproduction. While a copyrighted work or other subject matter is
communicated in the Internet, however, there are a vast number of
temporary copies automatically made in many devices, such as computers
and servers. If the copyright was granted to such temporary reproduction
and the copyright owner could control such temporary reproduction, it
would be a disaster for the Internet service providers. It must be
excluded from the reproduction right. In fact, when WIPO drafted WCT and
WPPT, the temporary reproduction was excluded from the reproduction
right. Because of the different views by the delegations, however, WIPO
diplomatic conference did not adopt the drafted provisions.[10] Thus the
task to exclude the temporary reproduction from the reproduction right
is left to national legislations.
Article 5(1) of the EU Copyright Directive provides an exception for
the temporary acts of reproduction, which are transient or incidental,
which are an integral and essential part of a technological process,
whose sole purpose is to enable a transmission in a network between
third parties by an intermediary or a lawful use of a work or other
subject-matter to be made, and which have no independent economic
significance. It should be noted that although other exceptions and
limitations are not obligatory, this exception for the reproduction
right is compulsory. That means that the member countries must implement
the exception in their national legislations. Besides, according to
article 5(4), this exception is also subject to the general three-step
test set up in Article 9 of Berne Convention. That is, such exception or
limitation shall only be applied in certain special cases that do not
conflict with a normal exploitation of the work or other subject matter
and do not unreasonably prejudice the legitimate interests of the right
holders.
3. Right of Communication and Making Available to the Public
Because of the digital technology and the Internet, copyrighted
works and other subject matters can be communicated on line and the
users in turn can retrieve the works or the subject matters at any place
and time. Online use has become a most important way to exploit
copyrighted works and other subject matters. Apparently copyright owners
shall control this new use and enjoy an exclusive right to authorize or
prohibit such exploitation. Otherwise, the interests of the copyright
owner cannot be guaranteed.
Some contracting states of WCT and WPPT had tried to cover the new
use of the copyrighted works by distribution right.[11] The European
Committee and its member states, however, intended to cover the online
use of works and other subject matter within the framework of the right
of communication to the public. As early as May 1996, the member states
and the EC submitted a joint proposal for the right of communication and
making available to the public.[12] Because of the efforts made by the
EC and its member states, and because many other countries preferred the
right of communication to the public, the final texts of WCT and WPPT
adopted EC’s proposal. The title of article 8 of WCT is right of
communication to the public,?the titles of article 10 and 14 of WPPT are
respectively right of making available of fixed performances?and right
of making available phonograms? Thus, as for the copyrighted works, WCT
used the term the right of communication to the public? whereas for the
performances and phonograms, WPPT used the term the right of making
available to the public?
Since the European Committee and its member states proposed the
right of communication and making available to the public, the EU
Copyright Directive chose almost the same wording as WCT and WPPT. The
title of article 3 of the Directive is right of communication to the
public of works and right of making available the public other subject
matter? Article 3(1) of the Directive requires member states to “provide
authors with the exclusive right to authorize 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.?Article 3(2) requires the member
states to provide for performers, phonogram producers, the producers of
films, and the broadcasting organizations, the exclusive right to
authorize or prohibit the making available to the public, of fixation of
performances, phonograms, original and copies of films, and fixation of
broadcasts. The right covers the making available of the above subject
matter in such a way that the members of the public may access them from
a place and at a time individually chosen by them.
As for the right of communication and making available to the
public, there are two basic elements. The first one is to offer a work
or a subject matter on a server that is available to the public. In this
way, a work or a subject matter is qualified to protection. Whether the
work or subject matter is communicated on line or retrieved by users is
irrelevant for the protection. The second element is that any individual
may select a place and a time to access the work or the subject matter.
It is the on-demand retrieval that the individual selection of place and
time of access together with the simultaneous accessibility is
sufficient. In this way, a user's decision is crucial. Every time when
he or she retrieves a work or subject matter in a place and at a time
chosen by him or her, he or she can get the work or subject matter he
wanted. Therefore, if he or she switches into a program that is running
out of his or her control, it is not an on-demand and not covered by the
right of communication and making available to the public.[13]
Article 3(3) of the EU Copyright Directive further provides that the
rights referred 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.?This provision only serves to clarify the fact that
the right of communication and making available to the public is not
exhausted by offering work or other subject matter on line and the owner
of the work or subject matter still enjoys a right to control further
communication.
In the draft of the Directive, there was an Article 3(4) reads as
the mere provision of physical facilities for enabling or making a
communication does not in itself amount to an act of communication to
the public within the meaning of this article.?This also served to
clarify the fact the provision of physical equipments has nothing to do
with the communication and making available to the public. This
paragraph was proposed by the European Parliament but was deleted from
Article 3 and put into the recitals.
4. Exceptions and Limitations
Article 5 of the EU Copyright Directive deals with the exceptions
and limitations of the copyright in the Internet. Although the main
purpose of the Directive is to harmonize the Member's copyright law
concerning the Internet, it does not reach the purpose well in the
exceptions and limitations. During the formulation of the Directive,
most of the time and the energy were spend on how to harmonize the
exceptions and limitations, and what should be or not should be included
in the directive. This demonstrates that the exceptions and limitations
are located in the center of the copyright system.
In the US copyright system, the copyright law only lists some
guidelines for the fair use. There are four factors to be considered to
decide whether a given use is fair or not: the purpose and character of
the use, including whether such use is of a commercial nature or is for
nonprofit educational purpose; the nature of the copyrighted works; the
amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and the effect of the use upon the
potential market for or value of the copyrighted work. Besides the
guidelines above, the US copyright law only lists criticism, comment,
news reporting, teaching, scholarship, and research as examples of the
fair use.[14]
Like the US copyright law, the EU Copyright Directive also makes
clear a general standard for the exceptions and limitations. Of cause
this is not the four-factor guideline in the US copyright law but a
three-step test coming from the Berne Convention. Article 5(5) reads as
the exceptions and limitations 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 right holder.?In contrasting with the US copyright law,
however, the EU Copyright Directive establishes specifically many
exceptions and limitations in detail. Among other things, article 5
deals with temporary acts of reproduction? Exceptions and limitations to
the reproduction right? and exceptions and limitations to both
reproduction right and the right of communication and making available
to the public? Because temporary acts of reproduction?has been discussed
in part 2 of this paper, it will be not touched here.
Article 5(2) deals with the exception or limitations only concerning
with reproduction right. According to this subsection, member state can
limit the reproduction right 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, provided that
the right holders receive fair compensation. But sheet music is not
included in the exception. This is only relating to photocopying. The
same standard also applies 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 right holders
receive fair compensation which takes account of the application or
non-application of the technological measures to the work or subject
matter. This is not only relating to analogue reproduction in audio and
visual sector, but also relating to digital reproduction.
In light of the provision above, some argues that the Directive has
introduced a right to an equitable remuneration for private
reproduction. It should be noted that this right is not only concerned
with analogue reproduction, such as photocopying, audio and visual
recording, but also concerned with new digital reproduction. Now many EU
countries have levies on blank tapes and photocopying equipments, which
is relating to analogue reproduction. But how can a member state levy in
digital reproduction and the Internet? It may be levies on computers,
printers, and printing papers, etc. But still it should be clarified in
the law.
In addition to the exceptions and limitations concerning
reproduction right above, article 5(2) provides that member countries
can exempt some specific reproductions made by publicly accessible
libraries, educational establishments or museums, or by archives, which
are not for direct or indirect economic or commercial advantage. Other
exceptions and limitations include: ephemeral recordings of works made
by broadcasting organizations by means of their own facilities and for
their own broadcasts; the preservation of these recordings in official
archives; and reproductions of broadcasts made by social institutions
pursuing non-commercial purpose on condition that the right holders
receive fair compensation.
Article 5(3) deals with the exceptions and limitations both for
reproduction right and the right of communication and making available
to the public. This subsection describes 15 situations in detail that
can be exempted from reproduction right and the right of communication
and making available to the public. Some of the exceptions and
limitations are as follows: Use for the sole purpose of illustration for
teaching or scientific research, as long as the source, including the
author's name is indicted; 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; reproduction by press, communication to the public or making
available of published articles on current economic, political or
religious topic 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;
quotations for purpose 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 the source is indicated, and that
their use is in accordance with fair practice, and to the extent
required by the specific purpose; use for the purpose of public security
or to ensure the proper performance or reporting of administrative,
parliamentary or judicial proceedings.
According to Article 5(4), member states may provide similar
exceptions and limitations concerning reproduction right to the right of
distribution, to the extent justified by the purpose of the authorized
act of reproduction. This means that all the exceptions and limitations
concerning with reproduction right can be applied to distribution right.
It is worth to point out that article 5 of the Directive has set up
the boundaries of the exceptions and limitations for the copyright. This
means that the exceptions and limitations in the Directive are
exhaustive ones, and member states cannot implement new ones in their
national law. In regard with this, many criticize that the directive has
frozen the development of new exceptions and limitations, especially in
such an age the technology is rapidly developing.[15]
5. Protection of Technological Measures
Traditionally, works and other subject matter are protected by
copyright. Because of the digital technology and the Internet, however,
works and other subject matter now can be protected as well by some
technological measures, such as the measures to control access to or
reproducing the copyrighted works. Although technological measure can be
used to protect works and other subject matter and to enforce copyright
and related rights, it can be circumvented by some acts and device or
some other technology. If the copyright system does not prohibit various
circumventions, the copyrighted works and other subject matters will not
be protected effectively in the digital environment. Thus, in order to
effectively protect works and other subject matters, copyright system
begins to protect the technological measures that protect the works and
other subject matters.
WCT and WPPT first provide the protection of technological measures
in international legislation. Article 11 of WCT, titled as obligations
concerning Technological Measures? requires contracting countries to
provide legal protection and effective legal remedies against the
circumvention of effective technological measures that are used by
authors in connection with the exercise of their rights and that
restrict acts, in respect of their works, which are not authorized by
the authors concerned or permitted by law. Article 18 of WPPT has a
similar provision concerning performances and phonograms. According to
the provisions above, WCT and WPPT only obligate contracting states to
prohibit the acts of circumventions, but do not prohibit manufacturing
and delivering the devices that are used to circumvent the technological
measures related.
Article 6 of EU Copyright Directive, titled obligations as to
technological measures? deals with the protection of technological
measures. According to article 6(4), 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 authorized by
the right holder of any copyright or any right related to copyright as
provided for by law or the sui generis right provided in the EU Database
Directive. Right holders may control the use of the protected works and
other subject matter by 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.
There are two significant differences between EU Copyright Directive
and the two treaties WCT and WPPT. First, the EU Copyright Directive not
only prohibits the circumvention actions, but also prohibits the
manufacture and sale of devices that are used to circumvent the
technological measures. Article 6(1) requires the member states to
provide adequate legal protection against the circumvention of any
effective technological measures. Here the precondition for the
punishable circumvention actions is the knowledge or with reasonable
grounds to know that he or she is pursuing that objective. Furthermore,
Article 6(2) prohibits 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 in the following cases: which are promoted, advertised or
marketed for the purpose of circumvention of any effective technological
measures; which have only limited commercial significant purpose or use
other than to circumvent any effective technological measures; which are
primarily designed, produced, adapted or performed for the purpose of
enabling or facilitating the circumvention of any effective
technological measures. Second, WCT and WPPT protect the technological
measures relating to copyrighted works, performances, and phonograms.
The EU Copyright Directive, however, not only protect those
technological measures relating to works, performances, and phonograms,
but also the technological measures relating to the sui generis database
right.
The Digital Millennium Copyright Act of the United States, while
protects the technological measures relating to the copyrighted works,
also set up some limits on such protection, such as reverse engineering,
encryption research, security testing.[16] The EU Copyright Directive,
however, does not provide such exceptions or limitations for the
protection of technological measures. Thus, on the one hand, it protects
technological measures both against the circumvention actions and the
manufacture and sale of the devices used to circumvent technological
measures. On the other hand, it does not set up any limits on such
protections. So many criticize that the Directive has chosen to provide
extremely broad legal protection to the technological measures. As a
result, even circumvention for totally legal purpose, including
manufacture and sale of a technological device designed to permit a
lawful use, is prohibited. [17]
There is a serious concern in the world about the theory of fair use
or the exceptions and limitations of copyrights in the context that the
technological measures are protected too much. In the traditional way,
if one can get a copyrighted work, one can fairly use it or benefit from
the exceptions and limitations of copyright. According to the new
provision, however, one cannot circumvent the technological measures in
order to get the copyrighted work and fair use it. If, because of the
technological measures, one could not get the copyrighted work, there is
no fair use. In this respect, even if a work is in the public domain but
protected by some technological measures, one may have no chance to use
it. Thus the theory of fair use or the exceptions and limitations of
copyright are threatened by technological measures in the digital world.
The EU Copyright Directive addresses this concern by a two-step
method. First, the Directive obligates the member states to promote
voluntary measures?taken by right holders, including the conclusion and
implementation of agreements between right holders and other parties
concerned, to accommodate achieving the objectives of exceptions and
limitations in national law in accordance with this Directive. Second,
if the right holders did not take such voluntary measures? or the right
holders and other parties did not reach such agreements in a reasonable
period, member states should step in and take appropriate measures to
ensure the right holders to provide beneficiaries of such exceptions and
limitations. This can be done by modifying an implemented technological
measure or by other means. It is believed that by this two-step method,
the legal protection of technological measures will not prejudice public
policy, including the exceptions and limitations set up in article 5 of
the Directive.[18]
In light of article 6(4), the two-step method shall apply with the
following seven exceptions and limitations: reprography; certain
reproduction acts by libraries, educational institutions, museums, and
archives; certain ephemeral recordings and archival copies by
broadcasts; the reproductions of broadcasts by certain social
institutions; certain uses for teaching and scientific research; certain
uses by the disabled; and uses for public security and for
administrative, parliamentary and judicial proceedings. In addition to
the seven cases above, as for private reproductions, article 6(4)
provides that the member states may take similar two-step method to
ensure the beneficiary of that exception or limitation. Besides,
voluntary measures taken by right holders, including agreements between
right holders and other parties concerned, as well as measures taken by
member states, must take account of the condition of fair compensation
and do not prevent right holders from adopting adequate measures
regarding the number of reproductions.[19]
When right holders take certain voluntary measures, including those
measures applied in the implementation of the agreements between the
right holders and other parties concerned, when the member states take
certain measures to ensure the exceptions and limitations concerned,
these measures themselves may become one kind of technological measures
and should enjoy legal protection.[20]
Although DMCA of the United States provides protection to
technological measures both against the act of circumvention and the
manufacture and sale of circumvention devices as well, it does not
adequately address the relationship between the protection of
technological measures and the theory of fair use or the exceptions and
limitations of copyright. In this respect, the EU Copyright Directive
has exploited the question quite well and put forward a two-step method
to resolve the problem. This is worth of other countries to learn as an
example. However, if the right holders did not take “voluntary
measures?within a reasonable period of time, how a member state may step
in and what kind measures a member state may take are still problems to
be resolved in the near future.
6. Protection of Rights Management Information
Rights management information means the information identifying the
work or other subject matter, the author or other right holder, or
information about the terms and conditions for the use of the work or
other subject matter, and any numbers or codes that represent such
information. In the EU Copyright Directive, rights?include copyright,
related right, or even sui generis database right. Because there is no
related right?or neighboring right?in the US copyright system, DMCA uses
a different term as copyright management information?
Rights management information is very important in the environment
of the digital technology and the Internet. Because it can identify the
work or other subject matter, the author or other right holder, and can
provide the terms and conditions for the use of the work or other
subject matter, it facilitates the distribution or use of works and
other subject matters. Right holders are encouraged everywhere to use
rights management information and to license their works or other
subject matter via rights management information. In the environment of
digital technology and the Internet, however, the electronic rights
management information can be easily removed or altered. Thus rights
management information must be protected effectively.
WCT and WPPT first provide that rights management information shall
be protected adequately and effectively. Afterwards the United States,
Japan, and the EU followed the provisions in WCT and WPPT in their
legislatures in this respect. Because the EU Copyright Directive closely
follows the provisions of WCT and WPPT in the protection of rights
management information, and because this report is a comment on the EU
Copyright Directive, this report will solely discuss the provision in
the Directive rather than in WCT and WPPT.
Article 7 of the Directive obligates the Member States to prohibit
any person knowingly performing two kinds of acts without authority. The
first one is to remove or alter any electronic rights management
information without authority. The other one is to distribute, import
for distribution, broadcast, communicate or make available to the public
of works and other subject matter from which electronic rights
management information has been removed or altered without authority.
The precondition for the prohibition is that such person knows, or has
reasonable grounds to know, that by doing so he or she is inducing,
enabling, facilitating or concealing an infringement of any copyright or
related rights. Here as in the case of protection of technological
measures, knowledge or having reasonable grounds to know is the
precondition for liabilities.
In contrasting with WCT, WPPT, the DMCA of the United States, the EU
Copyright Directive has two significance differences in relating to the
protection of rights management information. With respect to WCT and
WPPT, the protection of rights management information is concerned with
works, performances, and phonograms. In addition to works, performance,
and phonograms, however, the EU Copyright Directive extends the
protection to database as well. With respect to DMCA, in addition to
prohibit the two kinds of actions provided in EU Copyright Directive, it
also provides that nobody shall knowingly provide false copyright
management information, or distribute, import for distribution of
copyright management information that is false. There is no such
prohibition in the EU Copyright Directive.
7. Conclusion
One purpose of the EU Copyright Directive is to harmonize the
legislation of the Member States concerning the protection of copyright
and related rights in the Internet. In this respect, it is no doubt that
the Directive shall harmonize some aspects of the copyright system in
the European Union, especially with respect to reproduction right,
distribution right, the right of communication and making available to
the public, and the protection of technological measures and rights
management information. Thus the legislatures of the Member States shall
be identical at large with respect to the copyright protection in the
Internet.
Another purpose of the Directive is to implement WCT and WPPT and
ratify two treaties thereafter within the EU. WCT and WPPT shall enter
into force three months after 30 instruments of ratification or
accession by States have been deposited. Up to February 2002, there were
34 ratifications or accessions for WCT and 31 for WPPT, and WCT entered
into force on March 6, 2002, and WPPT will entered into force on May 20,
2002. Now the picture of the copyright protection in the Internet will
be changed totally worldwide.
In comparing with the DMCA of the United States, the EU Copyright
Directive bears some special characters in implementing WCT and WPPT,
such as the use of the term the right of communication and making
available to the public, the step-in method by state where necessary to
guarantee exceptions and limitations of copyright. All of these are
worth of China to learn, especially that both EU and China belong to the
same continental legal system.
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[1] This is the final report submitted to EU-China Higher Education
Cooperation Program, which financially supported the author of the
report to be a guest researcher from Feb. to July 2001, at
Max-Planck-Institute for Foreign and International Patent, Unfair
Competition, and Copyright Law in Munich, Germany. ?2001by Li, Mingde
[2] Li, Mingde, Professor of Law, Intellectual Property Center,
China Academy of Social Sciences; arbitrator, China International
Economic and Trade Arbitration Commission.
[3] Information Infrastructure Task Force: Intellectual Property and
the National Information Infrastructure, September 1995.
[4] Green Paper on Copyright and Related Rights in the Information
Society, COM (95) final, July 1995; Follow-up Green Paper on Copyright
and Related Rights in the Information Society, COM (96), Nov. 1996.
[5] Dr. Mihaly Ficsor, Copyright and Related Rights at the Footstep
of the 21st Century, WIPO/NCAC Regional Workshop for Asian and the
Pacific on Copyright and WIPO “Internet Treaties? Shanghai, October 12
and 13, 1998.
[6] Digital Millennium Copyright Act, Public Law 105-304, Oct. 28,
1998. (http://thomas.loc.gov)
[7] Copyright Law of Japan, 1999.
[8] See article 9 and 13 of EU Information Society Directive.
[9] Dr. Mihaly Ficsor, Copyright and Related Rights at the Footstep
of the 21st Century, WIPO/NCAC Regional Workshop for Asian and the
Pacific on Copyright and WIPO “Internet Treaties? Shanghai, October 12
and 13, 1998.
[10] Dr. Mihaly Ficsor, Copyright and Related Rights at the Footstep
of the 21st Century, WIPO/NCAC Regional Workshop for Asian and the
Pacific on Copyright and WIPO “Internet Treaties? Shanghai, October 12
and 13, 1998.
[11] For example, Information Infrastructure Task Force:
Intellectual Property and the National Information Infrastructure,
September 1995, at 213.
[12] Silke von Lewinski, Proposed EC Directive on Copyright and
Related Rights in the Information Society as It Porgress, IIC No.7,
1999.
[13] Silke von Lewinski, Proposed EC Directive on Copyright and
Related Rights in the Information Society as It Porgress, IIC No.7,
1999.
[14] See Article 106 of the US copyright law.
[15] For examples, see Thomas C. Vinje, Should We Begin Digging
Copyright's Grave? 2000 EIPR, issue 12; Bernt Hugenholtz, Why the
Copyright Directive is Unimportant, and Possibly Invalid, 2000 EIPR,
issue 11.
[16] Digital Millennium Copyright Act, section 1201.
[17] Thomas C. Vinje, Should We Begin Digging Copyright’s Grave? 2000
EIPR, issue 12.
[18] See recitals 51 and article 6 (4) of the EU Information Society
Directive.
[19] See recitals 52 and article 6 (4) of the EU Information Society
Directive.
[20] See recitals 51, 52 and article 6 (4) of the EU Information
Society Directive. |