[A2k] Judit's blog: How is Spain implementing the EU InfoSoc Copyright Directive?

[Ian Brown]

Manon Ress wrote:
> http://secondview.blogspot.com/2006/05/how-is-spain-implementing-eu-infos=
oc.html
> ...
> Of special concern is the language implementing the Technological
> Protection Measures (TPMs). The proposed text establishes the
> following system to address possible conflicts between TPMs and
> exceptions & limitations (e.g. the private copy exception):
> a) First, it relies on the voluntary measures adopted by the
> copyright-holders;
> b) In the absence of these measures, the beneficiaries of the
> exceptions can sue the copyright-holders to ensure the full enjoyment
> of their exceptions/limitations.
> The system amounts to completely forsaking the effectiveness of
> limitations and exceptions in digital formats by putting the burden
> of their enforcement on the beneficiaries and not in the =93right
> holders=94.

Unfortunately, this is just about as good as you'll get under the
copyright directive. Article 6(4) (on the resolution of TPM protection
and the directive's exceptions) says:

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

Giving a direct right of action to users of copyright works to sue right
holders is the best existing implementation of this, with Ireland being
just about the only EU15 member state to provide this mechanism. In most
other states you need to appeal to an administrative tribunal or
government agency (the Patent Office, working on behalf of the secretary
of state, in the UK) and ask them to require the right holder to obey
the law. The Netherlands has left this mechanism out of their first
implementation, because they can't believe the right holders would ever
do otherwise! http://www.fipr.org/copyright/guide/netherlands.htm