Excerpt
Table of Contents
List of Abbreviations Table of Contents
A. Introduction
B. Harmonization of European Copyright Law
I. Aspects of Harmonizing European Copyright Law
II. European Copyright Legislation
1. Computer Programs Directive
2. Rental and Lending Right Directive
3. Satellite and Cable Directive
4. Term Directive
5. Database Directive
6. Information Society Directive
7. Resale Right Directive
C. Georgian Copyright Law
I. Overview of the Georgian copyright legislation
1. Development of the Georgian Copyright Legislation
2. The Law on Copyright and Neighboring Rights
II. The level of harmonization
1. General aspects of harmonization
a. The Term of Protection
b. Protection of Computer programs
c. Protection of Databases
2. The Fourth Amendment
a. Copyright in the Information Society
b. Rental and lending right
c. Resale Right
d. Satellite and Cable
e. Other issues
D. Recommendations for the Further Harmonization
I. Extent of Further Harmonization
1. Computer Programs and Databases
a. Directive 91/250/EEC
b. Directive 96/9EC
2. Rental, lending and resale rights
a. Directive 2006/115/EC
b. Directive 2001/84/EC
3. Satellite and Cable, Term of Protection and Copyright in the Information Society
a. Directive 93/83/EC
b. Directive 2006/116/EC
c. Directive 2001/29/EC
II. How Far Should the Harmonization go
1. Possibilities for the Further Harmonization
2. Limitations to the Further Harmonization
E. Conclusions Bibliography: Annex
List of Abbreviations
illustration not visible in this excerpt
A. Introduction
The issue of harmonizing European Copyright law has already gone beyond the borders of the European Union. Initially the harmonization has been started as an ambitious plan of providing the set of basic Copyright rules which should be common for all of the 27 Member States and removing all of the national law differences having “direct and negative effects on the functioning of the common market”1. It has been the topic for discussion, to which extent this promise was realized, as the period of two decades gives the enough distance to look back. However sharp the critics towards European Copyright law harmonization might be, one thing is obvious: this law has successfully responded to several significant challenges and created a set of norms, which have become object for not only mandatory harmonization by the European Member States, but also for the certain kind of voluntary harmonization by the countries which are not the members of the European Union.
In order to understand the “semi-voluntary” character of harmonization, we have to mention the Partnership and Cooperation Agreements (PCAs) between the European Community and several Eastern European countries, including Georgia. The aims of these agreements have usually been to encourage the legal cooperation, which also contains the issue of legal harmonization. Therefore, the Partnership and Cooperation Agreement between Georgia and the European Community still remains as the legal base of the harmonization process2. However, the abovementioned requirement of the agreement is not the only motivator and driving force for harmonizing Georgian Copyright legislation with that of the EU. Moreover, the aspiration of Georgian society towards the European integration plays an important role even in the process legal harmonization.
Georgian Copyright legislation has passed the long and winding road before reaching the level of harmonizing European Copyright law. As the first Democratic Republic of Georgia did not have enough time to deal with the Copyright issues3, the first official Copyright legislation in Georgia was fully complied with Soviet ruling, according to which the property rights of authors, together with the significant amount of moral rights, were completely ignored. As the Soviet legislation had been ruling over Georgia during the seventy years4, it made significant effect on the perception of society towards Copyright, and on the reality, in general. Without acknowledging this, we would not understand why the difference between the levels of the Copyright protection in Georgia and in the European Union is so significant. Accordingly, we believe that the existing reality in the national legislation is an important issue to be taken into consideration while implementing the norms of the European Copyright law.
However, after restoring the independence in 1991, Georgian legislation has been involved quite enthusiastically in the process of legal harmonization5. When the Georgian law on Copyright and Neighboring Rights was adopted6, it was already harmonized with the significant amount of norms in the European Copyright legislation existed by that time7. Since then, Georgian law has been developed quite dynamically, while the six changes and amendments were made in this law up until now. However, new Directives were added to the European Copyright legislation as well. Generally, Copyright law is considered to be one of the most dynamically developing fields of the law, as it has to respond to the new challenges emerging from time to time.
The process of European Copyright law implementation has its own challenges as well. An abstract desire of harmonizing the European law should not be enough to overcome these challenges. Rather, the legislator has to take into consideration not only the European law which has to be implemented, but the existing reality and the logic of development in the national law as well. Similarly, during the implementation, balance has to be found between the general interests of harmonization and national interests of the existing legislation. In our opinion, this kind of ‘balance-based’ approach would lead to the successful realization of the European Copyright law harmonization into the Georgian legislation. Acknowledging this, sharing the synthetic approach and following the deductive reasoning, we have divided our thesis into three main parts:
In the first part we will discuss the European Copyright law from the harmonization perspective. The first chapter of this part will review the certain aspects of European Law which we consider as being important, in terms of its harmonization. In the second chapter we will discuss the seven Directives of the European Union regulating the Copyright issues. These Directives are set in the chronological order, according to the dates they were adopted (here we imply the adoption of the initial versions). Our discussion in the first part will be focused on the issues of harmonizing the abovementioned legislation.
The second part aims to answer the question, on which level is the Georgian Copyright legislation currently harmonized with the European one. Accordingly, this part will be dedicated to the Georgian Copyright law and contain two basic chapters. In the first chapter we will briefly review the development of the Georgian Copyright legislation. As we have already mentioned, the aspects of this development are important, in order to determine the frontiers for the future harmonization. In the second chapter we will define the current level of Georgian Copyright law harmonization with that of the European Union. While determining this extent, we will have to discuss the levels of harmonization made since the adoption of Georgian Law on Copyright and Neighboring Rights up until now. Therefore the issues of discussion will be set according to these levels: we will start from the topics already harmonized by the initial version of Georgian Copyright law and continue with the changes made by the fourth amendment8 to this law, which has been the most important amendment from the harmonization perspective, as we will see.
The last part will be based on the previous two parts and determine the frontiers for the further implementation of the European Copyright legislation into Georgian law. Particularly, it should answer the question, to which extent this implementation should be recommended. In the first chapter the issues will be set according to their relevance for further harmonization and the extent of their relation to each other. The discussion will have two basic directions: discussing the possibility of further harmonization in the areas where the further implementation should be recommended, and determining the certain limitations according to the areas where the further limitation should not be recommended. The second chapter will summarize the findings previously made and provide some recommendations for the further harmonization.
Although the harmonization process is mainly realized by the legislator, the role of scientific recommendations in this process is also quite important. “Academic experts could and should play an important role as ‘quality controllers’ at the European level as well”9. Similarly, in Georgian legislation the role of “quality controllers” have to be taken into consideration. As the basic norms of the European Copyright law have already been implemented, the further process of harmonization should be more and more based on the recommendations of the experts. Therefore, our thesis aims to contribute the academic discussion about harmonizing Georgian Copyright law with that of the European Union.
B. Harmonization of European Copyright Law
In this part we will discuss the European Copyright legislation mainly from the perspective of its implementation into the national laws of the states not belonging to the European Union. In the first chapter we will overview the certain aspects of harmonizing the European Copyright law. In the second chapter we will review the seven Directives containing in the European Copyright legislation.
I. Aspects of Harmonizing European Copyright Law
Nearly two decades have passed since the first Directive harmonizing the issues of Copyright protection all over the EC Member States has been adopted10. The process of involvement of the Community in the Copyright issues has started even earlier11. Since then the process of harmonizing European Copyright legislation has gone even beyond the initial scope: from the early “first generation” Directives regulating specific subject matters to the “second generation”, “horizontal” Information Society Directive and even further12. Generally, the European Copyright legislation has covered numerous important issues and regulated the several challenging aspects of Copyright.
Harmonization of the European Copyright legislation was based on some general and principal objectives. At first we have to mention the economic impulses which had the primary importance. “The harmonization of copyright and related rights has traditionally been inspired by two principal objectives: the proper functioning of the internal market and the improvement of the competitiveness of the European economy, also in relation to the EU’s trading partners.”13 In order to improve the functioning of the internal market and increase the competitiveness, European Copyright legislation had to remove all of the differences between the laws of the Member States which should “have direct and negative effects on the functioning of the common market”14 or negatively affect the competitiveness of European economy on the international level. Therefore, the initial scope of harmonization was covering the economic-related aspects of Copyright, as the economic reasons have been driving force for the harmonization process.
The economic aspect of harmonization is closely related to the challenges of contemporary technology, as the technological issues are becoming more and more important in nowadays economics. Therefore, “the Commission sees electronic commerce as an emerging market”15. Technological aspects are becoming increasingly important for Copyright as well, as “the advent of digital technology and the establishment of a networked environment, such as the Internet, have had an immense impact on the patterns of production, modification, dissemination and consumption of creative works packaged in digital formats.”16 Accordingly, European Copyright legislation aimed to respond to these challenges even in 1988, as the Commission adopted its Green Paper about the challenge of technology. Giving a glance at the European Copyright legislation, we should mention that the majority of the provisions of the Copyright Directives are dealing with the issues of contemporary technology, such as: computer programs, digital databases, satellite and cable, information society (Internet), etc. While acknowledging these challenges, European Copyright legislation has become more and more responsive and flexible to the recent technological developments, which is one of the main positive aspects to be mentioned.
Together with these significant positive aspects, we have to mention that the European Copyright law harmonization has deserved some critics as well. First of all, it has been mentioned that “twenty years of harmonization of the law of copyright and related rights have not produced a balanced, transparent, and consistent legal framework in which the knowledge economy in the European Union can truly prosper. Worse, the harmonization agenda has largely failed to live up to its promise of creating uniform norms of copyright across the European Union.”17 Particularly, the legal technique used in the provisions of earlier Directives have also been criticized for using “tentative approach”, the result of which is “a patchwork of measures covering seemingly unrelated (and, in some cases, apparently unimportant) areas of the law.”18 The content-related aspects, such as using the “without prejudice” clause to earlier Directives have been criticized as well, while it “inevitably leads to inconsistencies”19. We consider that these critics need to be taken into account by the national legislators while harmonizing the European Copyright law.
However, when criticizing European legislation, we also have to bear in mind the aspects putting the harmonization process into limitation;20 hard procedure of European lawmaking, which brings a lot of challenges to the legislators, and the limited competence of the European Community as well21. Despite of all these critics, we have to remember that European Copyright legislation has successfully responded to the economic and technological challenges mentioned above. Moreover, it has also managed to find “that legendary ‘delicate balance’ between the interests of right holders in maximizing protection and the interest of users (i.e., the public at large), in having access to products of creativity and knowledge.”22 In our opinion, finding this balance is one of the most important positive aspects of the European Copyright law, which definitely has to be taken into account by the national legislators while implementing this law into their national legislations.
Finally, we have to remark about the expansion of the European Copyright law into on the international level. It has been signified, that “acquis has had normative effect not only in the Member States that are obliged to transpose the directives, but also at the regional and international levels.”23 Because of the abovementioned successful aspects of inside-European harmonization, it has also been recommended to implement the standards of European Copyright law into the legislations of countries outside the European Community. Moreover, after signing the Partnership and Cooperation Agreements between the European Union and several other states the issue of legal harmonization, in general, and Intellectual Property law, in particular, has become important and, at some extent, obligatory for the European Union non-member states as well.24 Therefore, in our thesis we will mainly discuss the certain provisions of the European Copyright legislation from the perspective of its implementation into the legislation of the states which are not the members of the EU.
II. European Copyright Legislation
In this chapter we will briefly review the European Copyright legislation and mainly focus on the issues of harmonization. In the European Copyright legislation we imply the seven Directives discussed in this part, namely: Computer Programs Directive, Rental and Lending Right Directive, Satellite and Cable Directive, Term Directive, Database Directive, Information Society Directive and Resale Right Directive.
Among the European Copyright Directives we did not involve the Enforcement Directive25, which is the common practice26, as it does not exclusively deal with certain issues of Copyright. Rather, “the Directive concerns all intellectual property rights.”27 Therefore, discussing the Enforcement Directive would broaden the scope of our thesis from the particular Copyright issues to the general matters of the Intellectual Property rights. Although it would be interesting to review the provisions of this Directive in terms of their implementation, but it should be the issue for another discussion dealing with the implementation of European IP law into the Georgian IP legislation, in general.
1. Computer Programs Directive
This Directive is the first European act intended to harmonize the certain aspects in the European Copyright law which has removed the significant differences existed previously in the laws of the Member States.28 This Directive also was the response to the “challenges of technology” while the Copyright issues, including the area of computer programs, were “requiring immediate actions”29. These challenging issues contained piracy, audio-visual home copying and several other actions infringing the rights of authors of the computer programs and causing significant economic damages as well. Therefore, taking appropriate measures in order to protect computer programs by Copyright was the issue of concern and the main reason for adopting the Directive.30 While observing the whole development of computer programs protection in the European Union since the date of adoption of this Directive (1991) up until now, we have to deduce that the progress made during the last couple of decades is significant. This successful example increases the willingness to implement the Directive in the legislations of those non- Member States of the Union where the level of computer programs protection still remains low.
2. Rental and Lending Right Directive
While being the second Directive in European Copyright legislation, the Rental and Lending Right Directive 92/100/EEC also was “the first harmonization measure of the EC in the field of ‘classical’ copyright, and, in a fundamental way in the area of related rights”31. The Directive harmonizes “the provisions relating to rental and lending rights as well as on certain rights related to copyright” and provides the exclusive rights “to authorize or prohibit the rental and lending of both works subject to copyright and other objects subject to neighboring rights”32. Although it has repealed and replaced the previous Directive 92/100/EEC regulating the same issue, the amount of norms changed by this new Directive was not significant. Generally, the first and second parts of the Directive remained significantly different. The first chapter “confers rental and lending rights upon authors of works (in the Berne Convention sense), as well as upon performers and producers of phonograms and films”, while the second chapter “goes well beyond rental and lending rights to confer a whole range of rights upon performers, phonogram producers and broadcasters.”33
3. Satellite and Cable Directive
The Satellite and Cable Directive “requires Member States to provide an exclusive right for the author to authorize the communication to the public by satellite of copyright works”34. The text of this Directive is quite similar to the Television without Frontiers Directive35, as both of them have “the same objective with respect to barriers in the field of broadcasting and advertising law.” However, there is a significant difference, while “the present Directive deals both with broadcast television and radio services”36. This Directive comprises three main parts: the first part is providing several important definitions of the terms used in the act. The second part deals with the broadcasting of programs by satellite and the third part regulates the issues of cable retransmission. However, from the perspective of harmonization for the non-European countries, this Directive includes the Articles which could not be relevant for implementation. Some of these Articles are just referring to another provisions. Some of them are too specifically related to the European issues and therefore would not be recommended for harmonization. We will discuss these articles into details in the third part of the thesis.
4. Term Directive
The adoption of the Term Directive in 1993 was an important step towards harmonizing the European Copyright law, as it harmonizes the term of protection - “an essential element of copyright and neighboring rights which can influence the internal market in the EU if it is not harmonized”37. In 2006 it was replaced by the new Directive 2006/116/EC, but the main provisions which are relevant for harmonization were not changed. Unlike to the common international rules of Copyright providing only the minimum level of protection, this Directive also sets the maximum duration of protection38. The main essence of the Directive is “to extend the term of protection laid down by Berne Convention (which was 50 years pma39 ) to a uniform standard of 70 years pma.”40 There are several reasons for choosing the period 70 years, which is above the international standard. Although the 50 years period “was the more common term in Europe”, those countries having the longer term would need lengthy transitional measures; the new term also had to cover two generations in the “increasing average lifespan in EU” and, finally, “lengthening the term of protection would strengthen the position of the author during his lifetime”41. Therefore, implementing this term means to agree with the abovementioned arguments.
5. Database Directive
The Database Directive “is the fifth copyright Directive of the EC. At the same time, it is the first Directive that has been negotiated and adopted according to the co-decision procedure under Article 251 of the EC Treaty”42. Together with the ordinary Copyright protection, the third chapter of this Directive creates “a new exclusive 'sui generis' right for database producers, valid for 15 years, to protect their investment of time, money and effort, irrespective of whether the database is in itself innovative ("non-original" databases)”43. Unlike to the Computer Programs Directive, here the definition of “database” is provided in the first Article of the first chapter, according to which “'database` shall mean a collection of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means”. Provisions of the second chapter, guaranteeing the “ordinary” Copyright protection for databases, are similar with the relevant Articles of the Computer Programs Directive and, in case of implementation, these norms from both of the Directives can be unified together. However, the legislation harmonizing with this Directive, first of all, has to share the “two-tier protection regime” which has the main importance in the system of database protection.
6. Information Society Directive
The initial aim of this Directive was to deal “solely with the copyright implications of the internet”44. However, the scope of application has gone further and now it aims to “adapt legislation on copyright and related rights to reflect technological developments and to transpose into Community law the main international obligations arising from the two treaties on copyright and related rights adopted within the framework of the World Intellectual Property Organization (WIPO) in December 1996”45. Particularly, this Directive reflects the provisions of two international treaties: WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty. This Directive “initiated the ‘second generation’ of European copyright Directives which harmonizes the Copyright law more horizontally.”46
[...]
1 Recital 4, Directive 91/250/EEC.
2 Art. 43(2) Partnership and Cooperation Agreement between Georgia and EC, 1 July 1999.
3 The first Democratic Republic of Georgia actually declared independence in 1918 and was occupied in 1921.
4 From the occupation in 1921 till the restoring the independence in 1991.
5 Kereselidze in: Georgian Law Review p. 11.
6 Adopted in 1999.
7 Mainly Directives 91/250/EEC, 96/9EC and 93/98/EEC.
8 N.B. Translations from the non-English sources were made by the author.
9 Eechoud, p. 300.
10 Derclaye, p. 12.
11 Green Paper “Copyright and the Challenge of Technology” 1988.
12 Eechoud, p. 297.
13 Eechoud, p. 11.
14 Recital 4, Directive 91/250/EEC.
15 Kelleher/Murray, p. 84.
16 Mazziotti, p. 3.
17 Eechoud, p. 305.
18 Tritton, p. 487.
19 Eechoud, p. 301.
20 Ellins, p. 272.
21 Leistner, p. 71.
22 Eechoud, p. 299.
23 Eechoud p. 298.
24 See p. 18. (N.B. Always refers to the relevant page of the thesis.)
25 Directive 2004/48/EC.
26 Tritton, Dreier/Hugenholtz, Walter/Lewinski, etc.
27 Lakits-Josse in: Cottier/Veron Concise International and European IP Law, p. 464.
28 Bently in: Dreier/Hugenholtz Concise Copyright, p. 211.
29 Green Paper “Copyright and the Challenge of Technology”.
30 Art. 1(1) Directive 91/250/EEC.
31 Walter/Lewinski, p. 253.
32 Web-page of the European Commission.
(http://ec.europa.eu/internal_market/copyright/rental-right/rental-right_en.htm )
33 Tritton, p. 499.
34 Tritton, p. 509.
35 Directive 89/552/EEC.
36 Hugenholtz in: Dreier/Hugenholtz Concise Copyright, p. 263.
37 Visser in: Dreier/Hugenholtz Concise Copyright, p. 287.
38 Walter in: Walter/Lewinski, European Copyright Law, p. 507.
39 Post mortem auctoris.
40 Tritton, p. 515.
41 Visser in: Dreier/Hugenholtz Concise Copyright. p. 287-288.
42 Lewinski in: Walter/Lewinski, European Copyright Law, p. 683.
43 Web-page of the European Commission.
(http://ec.europa.eu/internal_market/copyright/prot-databases/prot-databases_en.htm )
44 Tritton, p. 531.
45 Web-page of the European Commission.
(http://ec.europa.eu/internal_market/copyright/copyright-infso/copyright-infso_en.htm )
46 Bechtold in: Dreier/Hugenholtz Concise Copyright, p. 343.