Diesen Beitrag in Deutsch lesen
Study – Paul Keller
Article 25 (“Relationship with exceptions and limitations provided for in other Directives”) which was added to the text of the Directive by the European Parliament It can be traced back to a JURI amendment (AM 993) tabled by MEP Kosma Złotowski (ECR). is one of the most important improvements of the final text over the original Commission proposal. It States that “Member States may adopt or maintain in force broader provisions, compatible with the exceptions and limitations provided for in the [InfoSoc and Database] Directives, for uses or fields covered by the exceptions or limitations provided for in this Directive”. In other words it makes it clear that the provisions of the DSM Directive do prevent the Member States from implementing additional exceptions, as long as they meet the requirements in existing EU law. This means that Member States implementing the DSM Directive will be free to make full use of the legislative room provided by the 19 optional exceptions contained in the InfoSoc Directive, many of which have not been implemented in many Member States.
In the interest of harmonization of user rights across the EU Member States should make sure to implement at least a minimum set of these exceptions in addition to the new exceptions mandatory exceptions introduced in the DSM Directive. In addition to newly mandatory quotation and parody exceptions (see the section on Article 17 below) Member States should make sure that they have fully implemented the following five exceptions from the InfoSoc Directive:
Art. 5.2(c) Reproductions by cultural heritage institutions
As discussed above, the new exception introduced Article 6 of the DSM Directive allowing reproductions for the purpose of preservation does not cover all needs of cultural heritage institutions. The main uses not covered by the new exception are internal uses by cultural heritage institutions and web harvesting (making and storing copies of publicly available websites for the purpose of preservation). Both of these uses can be covered by targeted national implementations of Article 5.2 (c) of the InfoSoc Directive that allows “specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage”. Member States should work with cultural heritage institutions to understand their specific needs and how these can be addressed alongside the implementation of the DSM Directive.
Art 5.3(a) Illustration for teaching or scientific research The
The education exception introduced by Article 5 of the DSM Directive only applies to digital and cross border educational uses. Most member states already have education exception based on Art 5.3(a) of the InfoSoc Directive but the scope of these exceptions is often limited. Member States implementing the DSM Directive should review the scope of their education exception and make sure that they cover all types of educational uses by educators and learners in both formal and informal education settings.
Art. 5.3(i) Use of works of architecture or sculptures in public spaces
One of the areas where the lack of harmonisation of exceptions between Member states is most egregious is the so called “freedom of panorama”. Freedom of Panorama results from national implementations of an exception based on Art. 5.3(i) of the Infosoc Directive which allows the use of “works of architecture or sculpture, made to be located permanently in public places”. In member states where this exception is not implemented, sharing a photo of a public setting that depicts a copyright protected work of architecture or a sculpture infringes the rights of the author of such works. The exception is not implemented in a number of member states and some that have implemented it only allow non-commercial uses. This creates an unwelcome situation in which every day acts that are legal in one member state are infringing in another. Member States that so far have not implemented the exception should remedy this situation by fully implementing the “freedom of panorama” exception alongside with the implementation of the DSM Directive.
Art. 5.3(k) Incidental inclusion
Article 17(7) of the DSM Directive requires Member States to ensure that users of Online Content Sharing Service Providers can rely on the exceptions for “quotation, criticism, review” (Article 5.3 (d) InfoSoc Directive) and “use for the purpose of caricature, parody or pastiche” (Article 5.3 (k)). While these two exceptions cover the majority of transformative types of user-generated content uploaded by users to online platforms, such as remixes and mash-ups they do not cover all possible uses. To fully achieve this objective, Member States that have not implemented the the exception allowing the incidental inclusion of protected works in their national laws should implement this exception together the implementation of the provisions introduced by the DSM Directive.
Art. 5.3(n) Use for the purpose of research or private study
Under national implementations of Art 5.3(n) of the InfoSoc Directive cultural heritage institutions in a number of Member States can make works in their collections available to their patrons for research or private study. This needs to happen via dedicated terminals located on the premises of the institutions While this exception allows cultural heritage institution to provide a valuable service in line with their public interest missions, it is worth noting that the limitation requiring the use of … Continue reading. This exception is essential in allowing cultural heritage institutions to provide the public access to works in their collections that cannot be made available online because of copyright restrictions and from the perspective of cultural heritage institutions it is unacceptable that this exception is not implemented in all Member States. Those Member States that have not (fully) implemented the exception should implement it together with the implementation of the provisions introduced by the DSM Directive.
|↑1||It can be traced back to a JURI amendment (AM 993) tabled by MEP Kosma Złotowski (ECR).|
|↑2||While this exception allows cultural heritage institution to provide a valuable service in line with their public interest missions, it is worth noting that the limitation requiring the use of “dedicated terminals” is out of sync with reality as it limits institutions from allowing visitors to bring their own devices (such as smartphones, tablets or laptops) to access works from the collections. During the legislative proceedings related to the DSM Directive, cultural heritage institutions have unsuccessfully tried to get this anachronistic requirement removed from the exception. However, this does not mean that the existing exception does not provide value to (the patrons) of cultural heritage institutions.|