• 8. International Harmonisation
  
  • 8.1 Foreign Approaches to Solving the Problem
  • 8.2 World Intellectual Property Organisation (WIPO)
  • 8.3 European Union

8. International Harmonisation

What use is it to the producer Multimedia if he is satisfied with the copyright provisions in Germany, the European Union and possibly in other industrialised countries such as the US and Japan, but if copyright protection is insufficient or totally lacking in just a few other countries, and if pirates are able to make infringing products available for global access via digital networks, operating from these "copyright Eldorados"?

8.1 Foreign Approaches to Solving the Problem

The same questions confronting the German legislature are also posed in all other national legal systems. Disregarding a small number of legal amendments concerning specific issues mostly in connection with databases or certain individual forms of digital exploitation of works, at the moment foreign countries are focusing their attention on national studies. [Fn.71: In particular in the US, Japan, France, Canada and Australia; see the references in the bibliography.]

8.2 World Intellectual Property Organisation (WIPO)

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An indication of the urgency of the current problems is the fact that it was possible to conclude two new international Treaties within the framework of the World Intellectual Property Organisation (WIPO). [Fn.72: Treaties available at http://www.wipo.int.] As a rule, international instruments ensue from long-term experience with different or gradually converging national provisions. It is hardly surprising that neither the Revised Berne Convention (RBC) directed at authors, last revised in 1967, nor the so-called Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations dating from 1960, contained provisions tailored specifically towards the exploitation of works and achievements in digital form.

The new WIPO Copyright Treaty (WCT) [Fn.73: WIPO Copyright Treaty.]

• obliges its contracting parties to grant a right of communication to the public, "including the making available to the public of ... works in such a way that members of the public may access these works from a place and at a time individually chosen by them, " thus explicitly covering on-line transmission of protected works as well;

• as regards provisions on limitation and exception, the scope of which was particularly disputed, the future WCT contracting parties remain free to provide for such provisions, provided that they do not conflict with a normal exploitation of the work and do not unreasonably prejudice the author's legitimate interests; [Fn.74: This wording was adopted from the previous limitation on the reproduction right laid down in Art. 9(2), RBC. An additional agreed statement - which is not part of the WCT itself but simply reflects the opinion of the conference participants - clarifies that previously existing national limitations that do not contradict the RBC may remain in force and that new limitations may be introduced for the digital sphere.]

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• in addition, the WCT obliges its contracting parties to introduce adequate and effective legal protection against devices for circumventing technical measures employed by rights holders for protection against unauthorised acts subject to their consent;

• finally, national legislatures shall provide effective remedies against unauthorised alteration of information which serves to identify the work, the author of the work, the owner of any right in the work, or which concerns conditions of use of the work.

A disputed issue concerned the liability of those participating in making protected works available on-line; in this respect it has been clarified that persons who merely provide facilities for transmission are not themselves liable for infringement of the right to communication in case of unlawful transmission.

The new WIPO Performances and. Phonograms Treaty (WPPT) [Fn.75: WIPO Performances and Phonogram Treaty] contains corresponding provisions for the benefit of performing artists and phonogram producers. In this Treaty, however, the interactive making available to the public of fixed performances and phonograms is expressly distinguished from other kinds of public communication. Thus, the above-mentioned persons are only entitled to an exclusive right with respect to digital making available on-line, as in the past there is no exclusive right in relation to previous forms of public communication, in particular by means of traditional radio broadcasting.

The conclusion of an international treaty for the grant of independent sui generis protection of databases according to the example of the EU Directive (cf. point 8.3) was postponed within the context of the diplomatic conference, yet negotiations have been envisaged for the near future. Finally, the rights of broadcasting organisations - and hence possibly those of providers of on-line services - also require international harmonisation.

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8.3 European Union

In 1996 the European Union (EU) laid the first stone for digital copyright law in its Directive for the Legal Protection of Databases, [Fn.76: Directive No. 96/9/EC, OJ EC No. L 77 of March 27, 1996, at 20.] According to the Directive, databases attract copyright protection with respect to the originality of their selection or arrangement; in addition, a new sui generis right was created against unauthorised "extraction and/or re-utilisation of the whole or of a substantial part of a database," the preparation of which required "a substantial investment." Implementation of the Directive in Germany was undertaken in the recent Multimedia Act. [Fn.77: The Act is available at http://www.iid.de/rahmen/iukdg.html.]

In addition, in view of the reactions sparked by its Green Paper "Copyright and Related Rights in the Information Society," [Fn.78: See reference in bibliography.] the Commission has announced plans for further legislative initiatives in its Communication of November 1996. [ ] According to the plans announced, the next Directive to be proposed and passed concerns the right of making available on-line, limitations on and exceptions to copyrights and legal protection of technical access control mechanisms, issues which shall be harmonised or regulated for the first time on a Community-wide basis. At a further stage issues of applicable law and of the liability of persons participating in the transmission process shall be examined and harmonised to the extent necessary.

It is evident that the details of these issues will pose considerable problems, since traditional national concepts must be abandoned in numerous practical details. Yet the

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improvements in national and European legal certainty will more than compensate for this.

The efforts undertaken by the EU Commission to arrive at the most uniform solution possible should be supported wholeheartedly by the German government with pertinent advice. This applies all the more since the EU will create an international model - as in the case of its legislation on computer programs and databases - and retain its role as an international pacemaker.