Amended proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society
C 180/6 EN Official Journal of the European Communities 25. 6. 1999 II (Preparatory Acts) COMMISSION Amended proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the information society (1) (1999/C 180/04) (Text with EEA relevance) COM(1999) 250 final - 97/0359(COD) (Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 25 May 1999) 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 (2), Having regard to the opinion of Committee (3), the Economic and Social Acting in accordance with the procedure laid down in Article 251 of the Treaty (4), (1) Whereas the Treaty provides for the establishment of an the removal of barriers to the free internal market, movement of goods, the freedom to provide services and the right of establishment and the institution of a system ensuring that competition in the internal market is not distorted; whereas harmonisation of the laws of the Member States on copyright and related rights contributes to the achievement of these objectives; (2) Whereas 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; whereas this requires, inter alia, the existence of an internal market for new products and services; whereas important Community legislation to ensure such a regu- latory framework is already in place or is well under way; whereas copyright and related rights play an important (1) OJ C 108, 7. 4. 1998, p. 6. (2) COM(97) 628 final of 10. 12. 1997 (OJ C 108, 7. 4. 1998, p. 6). (3) OJ C 407, 28. 12. 1998, p. 30. (4) Opinion of the European Parliament of 10. 2. 1999. role in this context as they protect and stimulate the and marketing of new products and development services and the creation and exploitation of their creative content; (2bis) Whereas the proposed harmonisation will help to implement the four freedoms of the internal market and relates to compliance with the fundamental prin- ciples of law and especially of property - including intellectual property - freedom of expression and the public interest; (3) Whereas 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; whereas this will safeguard employment and encourage new job creation; (4) Whereas technological development has multiplied and diversified the vectors for creation, production and exploi- tation; whereas, while no new concepts for the protection of intellectual property are needed, the current law on copyright and related rights will have to be adapted and supplemented to adequately respond to economic realities such as new forms of exploitation; (5) Whereas, without harmonisation at Community level, level which have already legislative activities at national been initiatied in a number of Member States in order to respond to the technological challenges might result in in protection and thereby in significant differences services and restrictions on the free movement of intellectual products incorporating, based on, or 25. 6. 1999 EN Official Journal of the European Communities C 180/7 leading to a refragmentation of the internal property, market and legislative inconsistency; whereas the impact of such legislative differences and uncertainties will become more significant with the further development the information society, which has already greatly of intellecutal increased property; whereas this development will and should further increase; whereas significant legal differences and uncertainties in protection may hinder economies of scale for new products and services containing copyright and related rights; exploitation transborder of to that end, the smooth functioning of (6) Whereas the Community legal framework for the legal protection of copyright and related rights must, therefore, also be adapted and supplemented as far as is necessary the internal market; for whereas, those national provisions on copyright and related rights which vary considerably from one Member State to another or which cause legal the uncertainties hindering the smooth functioning of internal market and the proper development of the information society in Europe should be adjusted, and inconsistent national responses to the technological devel- avoided, whilst differences not opments adversely affecting the internal functioning of market need not be removed or prevented; should be the adequate is considerable; services such as áon-demandí services, whereas intellectual of protection property rights is necessary in order to guarantee the availability of such a reward and provide the opportunity for satisfactory returns on this investment; legal (9bis) Whereas a rigorous, effective system for the protection of copyright and related rights is one of the main ways of ensuring that European cultural production receives the necessary resources and of safeguarding the inde- pendence and of performers; creators dignity artistic and (10) Whereas adequate protection of copyright works and subject matter of realted rights is also of great importance from a cultural standpoint; whereas Article 151 of the Treaty requires the Community to take cultural aspects into account in its action; (10bis) Whereas a common search for, and consistent application at European level of, technical measures the necessary to protect works and to provide the insofar as information on rights are essential ultimate aim of these measures is to give effect to the principles and guarantees laid down in law; (7) Whereas the various social, societal and cultural impli- cations of the information society require that account the content of be taken of products and services; the specific features of (10ter) Whereas this Directive must seek to promote learning and culture by protecting creative and artistic works while permitting exceptions in the public interest for the purpose of eduction and teaching; (8) Whereas any harmonisation of copright and related rights must take as a basis a high level of protection, since such rights are crucial to intellectual creation; whereas their protection helps to ensure the maintenance and devel- authors, in the opment of performing culture, producers, industry and the public at large; whereas intellectual property has therefore been recognised as an integral part of property; interests of consumers, creativity artists, area, (8bis) Whereas this Directive is based on principles and rules already laid down in the Directives currently in force in in particular Nos 92/100/EEC of 19 this November 1992, 93/98/EEC of 29 October 1993, 91/250/EEC of 14 May 1991, 93/83/EEC of 27 September 1993 and 96/9/EC of 11 March 1996, and whereas it develops those principles and rules and places them in the context of the information society; (9) Whereas if authors or performing artists 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 creative work; whereas the investment required to products such films or multimedia products, and as phonograms, (11) Whereas 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 Treatyí and the WIPO Performances and Phonograms Treatyí, dealing respectively with the protection of authors and the protection of performers and phonogram producers; whereas those treaties update the international protection least for copyright and related rights significantly, not with regard to the and agendaí, improve the means to fight piracy world-wide; whereas 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 is under way; Community and the Member States whereas to implement a number of the new international obligations; this Directive also serves co-called ádigital (12) Whereas 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 addressed horziontally and Council in Directive. /. /EC on certain legal aspects of electronic trademarks, European and will be Parliament C 180/8 EN Official Journal of the European Communities 25. 6. 1999 commerce in the internal market (1) which clarifies and harmonises various legal issues relating to information society services including electronic commerce; whereas the provisions relating to liability in the context of elec- tronic commerce should come into force within a this Directive, since they timescale similar to that of should provide a harmonised framework of principles and provisions relevant to, inter alia, important parts of this Directive; (12bis) Whereas, especially in the light of the requirements arising out of the digital environment, it is necessary to ensure that collecting societies achieve a higher level rationalisation and transparency with regard to of compliance with competition rules; (13) Whereas the provisions of this Directive should be without prejudice to existing Community provisions in the rights, unless and otherwise provided in this Directive; copyright area of related (13bis) Whereas this Directive applies without prejudice to the legal protection of designs, which is dealt with in European Directive 98/71/EC (2) on the legal protection of designs; Parliament Council and (14) Whereas this Directive should define the scope of the acts covered by the reproduction right with regard to the different beneficiaries; whereas this should be done in conformity with the acquis communautaire; whereas a broad definition of these acts is needed to ensure legal certainty within the internal market; (14bis) Whereas the objective of proper the dessemination of culture must not be achieved by sacrificing strict protection of rights or by tolerating counterfeited or illegal pirated works; forms of distribution of support for (15) Whereas this Directive right applicable to the communication to the public of works, where this has not yet been done by existing Community legislation; should harmonise the (16) Whereas 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; whereas rightholders recognised by the Directive with an exclusive right to make available to the public copyright works or any other subject matter by way of interactive on-demand transmissions; whereas such interactive on-demand trans- missions are charcterised by the fact that members of the provide should all it (1) COM(1998) 586 final of 18. 11. 1998. (2) OJ L 289, 28. 10. 1998, p. 28. public may access them from a place and at a time indi- vidually chosen by them; whereas this right does not cover direct representation or performance; (17) Whereas 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; (18) Whereas copyright protection under this Directive includes the exclusive right to control distribution of the work incorporated in a tangible article; whereas 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; whereas 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; (19) Whereas the question of exhaustion does not arise in the case of services and online sevices in particular; whereas this also applies with regard to a material copy of a work or other subject matter made by a user of such a service the rightholder; whereas, unlike with the consent of CD-ROM or CD-I, where the intellectual property is incor- porated in a material medium, namely an item of goods, every on-line service is in fact an act which will have to be subject to authorisation where the copyright or related right so provides; (20) Whereas the rights referred to in this Directive may be transferred, assigned or subjected to the granting of contractual licences, without prejudice to the relevant national legislation on copyright and related rights; (21) Whereas 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; whereas the existing exceptions to the rights as set out by the Member States have to be reassessed in the light of the new electronic environment; whereas existing differences in the limi- tations and exceptions to certain restricted acts have direct negative effects on the functioning of the internal market of copyright and related rights; whereas such differences could well become more pronounced in view of the further development of transborder exploitation of works and cross-border activities; whereas in order to ensure the proper functioning of the internal market, such exceptions should be defined more harmoniously; 25. 6. 1999 EN Official Journal of the European Communities C 180/9 their harmonisation should be whereas the degree of based on their impact on the smooth functioning of the internal market; (22) Whereas for this Directive provides an exhaustive enumeration of exceptions to the reproduction right and the right of communication to the public; whereas some exceptions only apply to the reproduction right, where appropriate; whereas this list takes due account of the different legal traditions in Member States, while, at the same time, aiming to ensure a functioning internal is desirable that Member States market; whereas should arrive these coherent exceptions, which will be assessed when reviewing implementing legislation in the future; application of at it a (23) Whereas the exclusive right of reproduction should be subject to an exception to allow certain acts of temporary reproduction, such as transient and incidental reproductions, forming an integral part of and essential to a technological process carried out for the sole purpose of enabling the use of a work or other protected subject matter and which have no separate economic value on their own; whereas under these conditions this exception should include acts of caching or browsing; (24) Whereas Member States should be given the option of such as providing for certain exceptions for the benefit of educational and scientific purposes, 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; for cases (24bis) Whereas 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; to prejudice rightholders; whereas, impact on the development of continuation of remuneration schemes to compensate for the although differences between those remuneration schemes affect the functioning of the internal market, those differences, with respect to analogue private reproduction, should not the have a significant information society; whereas digital private copying is likely to be more widespread and have a greater economic impact; whereas a distinction should therefore be made between digital private copying and analogue private copying and whereas the conditions of application should in both cases be harmonised to a certain extent; whereas it in the case of digital private copying, that all rightholders receive fair compensation. is of particular importance, (27) Whereas, when applying the exception on private copying, Member States should take due account of tech- nological and economic developments, in particular with respect to digital private copying and remuneration protection schemes, when measures are available; whereas such exceptions should not inhibit the use of technological measures or their enforcement against circumvention; technological effective (28) Whereas Member States may provide for an exception for the benefit of establishments accessible to the public, such as non-profit-making libraries and equivalent institutions; whereas, however, this should be limited to certain special cases covered by the reproduction right; whereas such an exception should not cover uses made in the context of on-line delivery of protected works or other subject matter; whereas should be without prejudice to Member States’ option to derogate from the exclusive public lending right in accordance with Article 5 of 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, as amended by Directive 93/98/EEC; whereas, therefore, specific contracts or licences should be promoted which, without creating imbalances, favour such establishments and the disseminative purposes they serve; this Directive (25) Whereas existing national schemes on reprography, where they do exist, do not create major barriers to the internal market; whereas Member States should be allowed to provide for an exception in respect of reprography; (26) Whereas Member States should be allowed to provide for an exception to the reproduction right for certain types of reproduction of audio, visual and audiovisual material for private use, accompanied by fair compensation in certain this may include the introduction or cases; whereas (29) Whereas, when applying those exceptions, they should be exercised in accordance with international obligations; whereas such exceptions may not be applied in a way which prejudices the legitimate interests of the rightholder or which conflict with the normal exploitation of his work or other subject matter; whereas the provision of such exceptions by Member States should, in particular, that such the increased economic impact duly reflect exceptions may have in the context of the new electronic environment; whereas, the scope of certain therefore, exceptions may have to be even more limited when it comes to certain new uses of copyright works and other subject matter; C 180/10 EN Official Journal of the European Communities 25. 6. 1999 (29bis) Whereas the exceptions referred to in Article 5(2) and (3) must not, however, prevent the definition of contractual relations designed to ensure fair compen- sation for the rightholders; (29ter) Whereas recourse to mediation could help users and to the settle rightholders 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; disputes; whereas (30) Whereas technological development will allow right- holders to make use of technological measures designed to prevent and inhibit the infringement of any copyright, rights related to copyright or sui generis rights provided by law; whereas illegal the danger, however, exists in order to enable or activities might be carried out facilitate the circumvention of the technical protection provided by these measures; whereas, 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 activity circumvention without authority, whether granted by the rightholders or conferred by law, of such measures; facilitating enabling that the or the however, preventing the infringement of any copyright, (30bis) Whereas such a legal protection should be provided to technological measures that effectively inhibit and/or prevent right related to copyright or sui generis rights provided by law, without, normal operation of electronic equipment and its technological development; whereas such legal protection implies no obligation to design devices, products, components or services to correspond to technological measures; whereas such legal protection should respect propor- those devices or tionality and should not prohibit significant activities which have the purpose or use other technical protection; whereas, this protection should not hinder research into crypto- graphy; than to circumvent in particular, commercially a (31) Whereas such a harmonised legal protection does not affect the specific provisions of protection provided for by Council Directive 91/250/EEC of 14 May 1991 on as the amended by Directive 93/98/EEC; whereas in particular, inhibit decompilation permitted by that it Directive; computer programs (1), legal protection of shall not in increasingly networked an format; whereas, environment, differences between technological measures could lead to an incompatibility of systems within the Community; whereas compatibility and interoperability of the different systems should be encouraged; whereas it would be highly desirable to encourage the devel- opment of global systems; (33) Whereas technological development will facilitate the distribution of works, notably on networks, and this the need for rightholders to better identify will entail 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; whereas there is, however, the danger that illegal activities might be carried out in order to the electronic copyright-management remove or alter information attached to it, or otherwise to distribute, import for distribution, broadcast, communicate to the public or make available to the public copies from which such information has been removed without authority; whereas 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 those activities; any such information rights-management (34) Whereas referred to above may, depending on their systems the same time process personal data about design, at the consumption patterns of protected subject matter by individuals and allow for tracing of on-line behaviour; functions, whereas technical means, should incorporate privacy safeguards in accordance and Council Directive whith European Parliament 95/46/EC of 24 October 1995 on the protection of indi- viduals with regard to the processing of personal data and the free movement of such data (2); in their technical (35) Whereas this Directive is without prejudice to the application and Council Directive. /. /EC concerning the legal protection of services based on, or consisting of, conditional access; Parliament European of (36) Whereas Member States should provide for effective sanctions and remedies for infringements of rights and obligations as set out in this Directive; whereas they shall the measures necessary to ensure that those sanctions and remedies are applied; whereas the efffective, thus sanctions proportionate and dissuasive; provided take all shall for be (32) Whereas important progress has been made in the inter- national standardisation of technical systems of identifi- cation of works and protected subject matter in digital (37) Whereas, in order to comply with the WIPO Performers and Phonograms Treaty, Directives 92/100/EEC and 93/98/EEC should be amended; (1) OJ L 122, 17. 5. 1991, p. 42. (2) OJ L 281, 23. 11. 1995, p. 31. 25. 6. 1999 EN Official Journal of the European Communities C 180/11 (38) Whereas, after a period of two years following the date of implementation of this Directive, the Commission should report on its application; whereas this report should examine in particular whether the conditions set out in the Directive have resulted in ensuring a proper func- the internal market, and should propose tioning of action if necessary, (b) for performers, of fixations of their performances; (c) for phonogram producers, of their phonograms; (d) for the producers of the frist fixations of films, in respect of the original and copies of their films; 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. Except in the cases referred to in Article 10, this Directive leave intact and shall in no way affect specific existing 2. shall 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; (e) for broadcasting organisations, of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite. fixations of Article 3 Right of communication to the public, including the right of making available works or other subject matter 1. Member States shall provide authors with the exclusive right to authorise or prohibit any communication to the public of originals and copies 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; (d) the term of protection of copyright and certain related rights; (c) or the producers of the frist fixations of films, of the original and copies of their films; (e) the legal protection of databases. CHAPTER II RIGHTS AND EXCEPTIONS Article 2 Reproduction right Member States shall provide for exclusive right to authorise or temporary or permanent repro- prohibit direct or indirect, duction by any means and in any form, in whole or in part: (a) for authors, of their works, (d) for broadcasting organisations, of their broadcasts, whether these broadcasts are transmitted by wire or over the air, including by cable or satellite. fixations of The rights referred to in paragraphs 1 and 2 shall not be 3. exhausted by any act of communication to the public of a work and other subject matter as set out in paragraph 2, including their being made available to the public. 4. 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. C 180/12 EN Official Journal of the European Communities 25. 6. 1999 Article 4 Distribution right (c) in respect of the 1. Member States shall provide authors, thereof, with the original of exclusive right to any form of distribution to the public by sale or otherwise. their works or of copies specific acts of reproduction made for in respect of archiving or conservation purposes by establishments which are not economic or commercial advantage, such as, in particular libraries and archives and other teaching, educational or cultural estab- lishments; for direct or indirect 2. The distribution right shall not be exhausted within the Community in respect of the original of their works or of copies thereof, 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 to the restricted acts set out in Articles 2, 3 and 4 Temporary acts of reproduction referred to in Article 2, 1. such as transient and incidental acts of reproduction which are an integral and essential part of a technological process, including those which facilitate effective functioning of trans- mission systems, whose sole purpose is to enable use to be made of a work or other subject matter, and which have no independent economic significance, shall be exempted from the right set out in Article 2. 2. Member States may provide for to the exclusive right of reproduction provided for in Article 2 in the following cases: limitations (a) in respect of exception of musical works reproductions on paper or any similar in medium, with the published form, effected by the use of any kind of photo- graphic technique or by some other process having similar effects, provided that the rightholders receive fair compen- sation; (b) in respect of reproductions on audio, visual or audio-visual analogue recording media made by a natural person for private and strictly personal use and for non-commercial ends, on condition that receive fair compensation; the rightholders (d) in respect of ephemeral organisations by means of their own broadcasts; fixations made by broadcasting their own facilities and for 3. Member States may provide for limitations to the rights referred to 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 is indicated and to the extent justified by the non-commercial purpose to be achieved, on condition that the rightholders receive fair compensation; (b) uses for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature and to the extent required by the specific disability; (c) use of excerpts in connection with the reporting of current events, as long as the source and, if possible, the author’s name is indicated, and to the extent justified by the informatory purpose and the objective of illustrating the event concerned; (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 the source and, if possible, the author’s their use is in accordance name is indicated, and that required by the with fair practice, and to the extent specific purpose; (e) use for the purposes of public security or to ensure the reporting of an administrative, proper performance or parliamentary or judicial procedure. the Member States may provide for an 3bis. Where exception to the right of reproduction pursuant to paragraphs 2 and 3 of this Article, they may provide similarly for an exception to the right of distribution as referred to in Article 4 to the extent justified by the purpose of the authorised act of reproduction; (b) bis. in respect of reproductions on audio, visual or audio- visual digital recording media made by a natural person for private and strictly personal use and for non-commercial ends, without prejudice to oper- ational, reliable and effective technical means capable of protecting the interests of the rightholders; for all digital private copying, however, fair compensation for all rightholders must be provided; 4. The exceptions and limitations provided for in paragraphs 1, 2, 3 and 3a shall only be applied to certain specific cases and shall not be interpreted in such a way as to allow their application to be used in a manner which unreasonably prejudices the rightholders’ legitimate interests or conflicts with the normal exploitation of their works or other subject matter. 25. 6. 1999 EN Official Journal of the European Communities C 180/13 CHAPTER III Article 7 PROTECTION OF TECHNOLOGICAL MEASURES AND RIGHTS-MANAGEMENT INFORMATION Article 6 Obligations as to technological measures 1. Member States shall provide adequate legal protection against the circumvention without authority of any effective technological measures designed to protect any copyright or any rights related to copyright as provided by law or the sui generis right provided for in Chapter III of European Parliament and Council Directive 96/9/EC, which the person concerned carries out in the knowledge, or with reasonable grounds to know that he or she pursues that objective. 2. Member States shall provide adequate legal protection against any activities, including the manufacture or distribution of devices, products or components or the provision of services, carried out without authority, 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 designed to protect any copyright or any right related to copyright as provided by law or the sui generis right provided for in Chapter III of European Parliament and Council Directive 96/9/EC. 3. The expression átechnological measuresí, as used in this Article, means any technology, device or component that, in the normal course of its operation, is designed to prevent or inhibit the infringement of any copyright or any right related to copyright as provided by law or the sui generis right provided for III of European Parliament and in Chapter Council Directive 96/9/EC. Technological measures shall be deemed áeffectiveí where the access to or use of a protected work or other subject matter is controlled through application of an access code or any other type of protection process which achieves the protection objective in an operational and reliable manner with the the rightholders. Such measures may include authority of decryption, descrambling or other the work or other subject matter. transformation of Obligations concerning rights-management information 1. Member States shall provide for adequate legal protection against any person 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 copies of works or other subject matter protected under this Directive or under Chapter III of Directive 96/9/EC from which electronic rights-management has been removed or altered without authority, if such person knows, or has reasonable grounds to know, that facilitating an by so doing he is infringement of any copyright or any rights related to the sui generis right copyright as provided by law, or of provided for in Chapter III of Directive 96/9/EC. inducing, enabling or 2. The expression árights-management informationí, as used in this Article, 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 right- holder, 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 are associated with a copy of, or appear in connection with the communication to the public of, a work or other subject matter referred to in this Directive or covered by the sui generis right provided for in Capter III of Directive 96/9/EC. CHAPTER IV COMMON PROVISIONS Article 8 Sanctions and remedies set out 1. Member States shall provide appropriate sanctions and remedies in respect of infringements of the rights and obli- the gations measures necessary to ensure and remedies are applied. The sanctions thus provided for shall be effective, proportionate and dissuasive and act as a deterrent to further infringement. in this Directive and shall take all sanctions those that 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. C 180/14 EN Official Journal of the European Communities 25. 6. 1999 Article 9 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, by the date referred to in Article 11(1), protected by the Member States’ legislation in the field of copyright and related right, 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 of exploitation performed before the date referred to in Article 11(1). This Directive shall not affect any contracts concluded or 3. rights acquired before the date of its entry into force. 4. Notwithstanding paragraph 3, contracts concerning the exploitation of works and other subject matter which are in force on the date referred to in Article 11(1) shall be subject to this Directive as from five years after its entry into force if they have not expired before that date. Article 10 Technical adaptations 1. Directive 92/100/EEC is hereby amended as follows: (a) Article 7 is deleted. (b) Article 10(3) is replaced by the following: 3. The limitations may only be applied to certain specific cases and may not be interpreted in such a way as to allow their application to be used in a manner which legitimate unreasonably the interests or conflicts with normal exploitation of their subject matter. í rightholders’ prejudices Article 3(2) of Directive 93/98/EEC is replaced by the 2. following: 2. The rights of producers of phonograms shall expire 50 years after the fixation is made. However, if the phonogram is lawfully published during this period, the rights shall expire 50 years from the date of the first such publication. í these provisions, these shall When Member States adopt contain a reference to this Directive or shall be accompanied by such reference at the time of their official publication. The procedure for such reference shall be adopted by Member States. to the European Parliament, 2. Not later than at the end of the second year after the date referred to in paragraph 1 and every three years thereafter, the Commission shall submit the Council and the Economic and Social Committee a report on the application of this Directive, 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. Where necessary to ensure the functioning of the internal it shall submit market pursuant to Article 14 of the Treaty, proposals for amendments to this Directive. in which, Protection of 3. Directive shall protection of copyright. rights leave intact and shall related to copyright under in no way affect this the 4a) A Contact Committee shall be set up under the aegis of the Commission. 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 delegation of a Member State. the Chairman or at the request of 4b) The task of the Committee shall be as follows: - To facilitate the effective implementation of this Directive by organising regular consultation on all questions deriving from its application; - To facilitate the exchange of information between the Member States and the Commission on the situation of and developments in regulatory activities in the field of copyright and related rights and sui generis rights, as well as on the relevant developments in the field of technology; - to examine any developments in the sector for which consultation appears useful; Article 12 Entry into force Article 11 Final provisions This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Communities. 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this immediately inform Directive by 30 June 2000. They shall the Commission thereof and shall also communicate to the Commission the text of the provisions of domestic law which they adopt in the field governed by this Directive. Article 13 Addressees This Directive is addressed to the Member States