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

[Judit Rius Sanjuan]

Thank you Ian. My reading of art. 6(4) of the Directive is that it
creates the two-step test Spain is implementing but it allows for
flexibility when designing the system (".... in absence of voluntary
measures taken by right-holders....Member States shall take appropriate
measures...").  Maybe giving a direct right of action to users of works
to sue right holders is the best existing implementation of the EU
Directive but is not good enough. It is expensive and time consuming. A
suggestion is that Spain could create a cheap & easy arbitration system
as an alternative to the current "go to court and defense your-self"
proposal.

Judit

Ian Brown wrote:
>  Manon Ress wrote:
> >
http://secondview.blogspot.com/2006/05/how-is-spain-implementing-eu-infosoc=
.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
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>


--
Judit Rius Sanjuan
judit.rius at cptech.org
www.cptech.org

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