Guibault, Westkamp and Rieber-Mohn (2007)
|Guibault, Westkamp and Rieber-Mohn (2007)|
|Title:||Study on the Implementation and Effect in Member States’ Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society|
|Author(s):||Guibault, L., Westkamp, G, Rieber-Mohn, T.|
|Citation:||Guibault et al., Study on the Implementation and Effect in Member States’ Laws of Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society (2007)|
|Link(s):||Definitive , Open Access|
|Key Related Studies:|
|About the Data|
|Data Description:||This methodology has an empirical and an analytical component that might help predicting the Directive’s impact on the behaviour of market players. For the empirical part Berlecon Research has conducted a qualitative survey among stakeholders by means of interviews and a workshop organised in Berlin on the subject. For the analytical part of the methodology the authors have defined a benchmark test consisting of five criteria that might influence market behaviour by digital content providers and users.|
|Data Type:||Primary data|
|Secondary Data Sources:|
|Data Collection Methods:|
|Data Analysis Methods:|
|Cross Country Study?:||Yes|
|Government or policy study?:||No|
|Time Period(s) of Collection:||
This study, commissioned by the European Commission, examines the application of Directive 2001/29/EC in the light of the development of the digital market. Its purpose is to consider how Member States have implemented the Directive into national law and to assist the Commission in evaluating whether the Directive, as currently formulated, remains the appropriate response to the continuing challenges faced by the stakeholders concerned, such as rights holders, commercial users, consumers, educational and scientific users. As set out in specifications of the study set out by the Commission, its aim is 'to assess the role that the Directive has played in fostering the digital market for goods and services in the four years since its adoption'. The impact of the Directive on the development of digital (chiefly online) business models, therefore, will be the focal point of our enquiry throughout this study.
Main Results of the Study
- The exclusive rights laid down in the Directive have indeed contributed to increased confidence in emerging digital markets and online business models. This conclusion however was to be mitigated by the fact that many of these rights already existed prior to the Directive, albeit not in a harmonized European framework.
- The right of making available has undoubtedly resulted in a large-scale redrafting of contracts to adapt to online markets. However, applying the terms of the Directive does not always lead to clear-cut results. To cite one example, it remains unclear and entails practical problems whether streaming is to fall under the right of making available or if it is to be counted under broadcasting rights.
- The codification of a broad right of reproduction that includes temporary copying is widely perceived as having created obstacles to budding online business models. This stems from the fact that it has created an overlap with the right of communication to the public, which adds complexity to the licensing process and sometimes a need for ‘double’ licenses from concurrent rightholders or collecting societies. Indeed, it could be said that this aspect of the Directive has raised transaction costs. It was therefore suggested to further restrict the right of reproduction to the realm of physical copies.
- The need to simplify cross-border licensing which is still tributary to national laws was also broached. One way to deal with this was to promote Community-wide licensing, as was being attempted by the Commission’s Recommendation. Another, more fundamental approach would be to truly unify copyright norms by establishing a unified European copyright regime.
- A clear need for a higher degree of harmonisation was certainly felt in the area of limitations. Most participants seemed to favour the introduction of a list of mandatory exceptions, possibly including certain non-overridable limitations. However, because many such exceptions are informed by cultural considerations, not everyone agreed such a mandatory list is desirable. Those who favoured a rapprochement with the American ‘fair use’ concept were countered with the argument that its flexibility could undermine legal certainty. It was agreed that consumer interests which are also reflected in certain exceptions to copyright should be dealt with primarily in the framework of consumer law.
- The application of TPMs, in turn, has likely fostered the emergence of online business models as investment in online subscription services has apparently increased. However, many doubt the necessity of adding an additional legal layer of protection through anti-circumvention rules.
Policy Implications as Stated By Author
DRM must be made more transparent in the interest of both emerging business models and consumers. In this context, the need to protect consumers’ privacy was underscored. Finally, a dangerous tendency was observed to use TPMs to protect business models rather than content. It was agreed this perverted the purpose of the Directive which is to protect TPMs to benefit of rightholders. A standardisation of TPMs could help to avoid such abuses. Legal solutions to this problem, however, are best found in consumer law and competition law rather than copyright law.
Coverage of Study
|Level of aggregation:||Stakeholders|
|Period of material under study:||2006|