The Copyright Protection in the Internet: A Comment on the E. U. Copyright Direc

The digital technology and the Internet have created some new ways to exploit the copyrighted works and other subject matter. Traditionally, copyrighted works and other subject matter are published in the form of papers, films, and tapes, or communicated by radio, and television, etc. Because of the digital technology and the Internet, however, almost all of the copyrighted works, such as computer software, articles, stories, music, photos, and performances can be digitalized and provided directly on line. All of this totally changed the scenario or backgrounds in which the traditional copyright system is existed.

In order to resolve the problems or meet the challenges brought by the digital technology and the Internet, many important industrialized countries, such as the United States, the European Union, conducted detailed studies on the new technology and its impact on the copyright system, and published their reports in 1995 and 1996. For example, in September 1995, the United States published ?ntellectual Property and the National Information Infrastructure?[3] in July 1995 and November 1996, the European Commission respectively published Green Paper on Copyright and Related Rights in the Information Society?and follow-up to the Green Paper on Copyright and Related Rights in the Information Society?[4]

While some important industrialized countries were studying the impact on copyright system by the digital technology and the Internet, the World Intellectual Property Organization (WIPO) also put the questions on its agenda. In December 1996, WIPO diplomatic conference adopted WIPO Copyright Treaty (WCT) and WIPO Performance and Phonogram Treaty (WPPT). The two new treaties are intended to resolve the problems brought by the digital technology and the Internet at the international level. In sense of this striking character, the international press, which followed the diplomatic conference with great attention, simply referred the two treaties as internet treaties?[5]

The copyright protection in the worldwide Internet is not a question for one or several countries. Because there is no national boundary in the Internet, because the copyrighted works and subject matter can be communicated to every corner of the world, the problems of copyright protection in the Internet must be resolved at global level. In this way, WCT and WPPT established some basic principles or provisions with respect to the copyright protection in the Internet. In order to ratify or access to the treaties, member countries must implement these basic principles or provisions into their legislations. This situation, that first at international legislation and then at national legislations also indicates that the copyright problem in digital environment must be resolved internationally.

After 1997, there is a wave of national or regional legislations to implement WCT and WPPT worldwide. In October 1998, the United States passed digital Millennium Copyright Act?(hereafter as DMCA).[6] In June 1997 and June 1999, Japan twice amended its copyright law.[7] In April 2001, the Parliament of European Union passed directive 2001/29/EC of the European Parliament and of the Council on the Harmonization of Certain Aspect of Copyright and Related Rights in the Information Society?(hereafter as the Copyright Directive). According the provisions related, member states shall bring into force their laws, regulations and administrative provisions necessary to comply with the Directive before 22 December 2002, and the provisions of the Directive shall apply to the works and other subject matters protected by member states on 22 December 2002.[8]

This comment is going to discuss some questions on the EU Copyright Directive. The related questions are reproduction right? Right of communication or making available to the public? Exceptions and limitations? The protection of technological measures? and the protection of rights management information? Although there is a provision about distribution right?in WCT, WPPT, and the EU Copyright Directive, it has little to do with the copyright protection in the Internet. Therefore, this comment will not cover this question. Besides, in order to further study the questions related and to achieve a comparison effect, WCT, WPPT, and DMCA will be occasionally cited.

2. Reproduction Right

One of the basic ways to exploit the copyrighted works and other subject matter is to reproduce the works and subject matter. Because of the advent of the digital technology and the Internet, however, the concept of reproduction has changed dramatically. For example, almost all of the copyrighted works and other subject matter now can be digitalized and stored in CDs and computer. While a work is communicated in the Internet, there are also a series of the reproductions taking place, including the reproductions made by uploading and downloading the works, and many temporary reproductions automatically made by Internet servers and computers. As a result, the content of the reproduction has changed a great deal, and the reproduction should be redefined in light of the new technology.

There is a provision about reproduction right in article 9 of Berne Convention for the Protection of Literary and Artistic Works. It provides that authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works, in any manner or form.?According to this provision, the reproduction of copyrighted works can be made in any manner or form. Surely this is a very broad definition that can be interpreted to cover any direct or indirect, permanent or temporary reproduction in the digital environment.

The drafts of WCT and WPPT had tried to clarify the reproduction right in light of the new technology.[9] Because of the different views concerning the exceptions and limitations of the reproduction right, however, the WIPO Diplomatic conference in December 1996 only adopted some agreed statements concerning reproduction right. For example, an agreed statement for WCT is as follows: the reproduction rights, as set out in Article 9 of Berne Convention, and the exceptions permitted thereunder, fully apply in the digital environment, in particular to the use of works in digital form. It is understood that the storage of a works in digital form in an electronic medium constitutes a reproduction within the meaning of Article 9 of the Berne Convention.?A similar agreed statement was also adopted for WPPT.

The DMCA of the United States does not further clarify the reproduction right because Americans believe that the reproduction right in their current copyright law can be interpreted into the digital environment. In contrasting with DMCA, the EU Copyright Directive clarifies that the reproduction includes direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part. According to Article 2 of the Directive, such a reproduction right is to be granted to authors with respect to their works, to performers with respect to the fixation of their performances, to phonogram producers with respect to their phonograms, to producers of film with respect to the original and copies of their films, and to broadcasting organizations with respect to the fixations of their broadcasts. As for the broadcasting organizations, it is irrelevant whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.

It is no doubt that this is a very broad definition that covers any kind reproduction. While a copyrighted work or other subject matter is communicated in the Internet, however, there are a vast number of temporary copies automatically made in many devices, such as computers and servers. If the copyright was granted to such temporary reproduction and the copyright owner could control such temporary reproduction, it would be a disaster for the Internet service providers. It must be excluded from the reproduction right. In fact, when WIPO drafted WCT and WPPT, the temporary reproduction was excluded from the reproduction right. Because of the different views by the delegations, however, WIPO diplomatic conference did not adopt the drafted provisions.[10] Thus the task to exclude the temporary reproduction from the reproduction right is left to national legislations.

Article 5(1) of the EU Copyright Directive provides an exception for the temporary acts of reproduction, which are transient or incidental, which are an integral and essential part of a technological process, whose sole purpose is to enable a transmission in a network between third parties by an intermediary or a lawful use of a work or other subject-matter to be made, and which have no independent economic significance. It should be noted that although other exceptions and limitations are not obligatory, this exception for the reproduction right is compulsory. That means that the member countries must implement the exception in their national legislations. Besides, according to article 5(4), this exception is also subject to the general three-step test set up in Article 9 of Berne Convention. That is, such exception or limitation shall only be applied in certain special cases that do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the right holders.

3. Right of Communication and Making Available to the Public

Because of the digital technology and the Internet, copyrighted works and other subject matters can be communicated on line and the users in turn can retrieve the works or the subject matters at any place and time. Online use has become a most important way to exploit copyrighted works and other subject matters. Apparently copyright owners shall control this new use and enjoy an exclusive right to authorize or prohibit such exploitation. Otherwise, the interests of the copyright owner cannot be guaranteed.

Some contracting states of WCT and WPPT had tried to cover the new use of the copyrighted works by distribution right.[11] The European Committee and its member states, however, intended to cover the online use of works and other subject matter within the framework of the right of communication to the public. As early as May 1996, the member states and the EC submitted a joint proposal for the right of communication and making available to the public.[12] Because of the efforts made by the EC and its member states, and because many other countries preferred the right of communication to the public, the final texts of WCT and WPPT adopted EC? proposal. The title of article 8 of WCT is right of communication to the public,?the titles of article 10 and 14 of WPPT are respectively right of making available of fixed performances?and right of making available phonograms? Thus, as for the copyrighted works, WCT used the term the right of communication to the public? whereas for the performances and phonograms, WPPT used the term the right of making available to the public?

Since the European Committee and its member states proposed the right of communication and making available to the public, the EU Copyright Directive chose almost the same wording as WCT and WPPT. The title of article 3 of the Directive is right of communication to the public of works and right of making available the public other subject matter? Article 3(1) of the Directive requires member states to ?rovide authors with the exclusive right to authorize or prohibit any communication to the public 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.?Article 3(2) requires the member states to provide for performers, phonogram producers, the producers of films, and the broadcasting organizations, the exclusive right to authorize or prohibit the making available to the public, of fixation of performances, phonograms, original and copies of films, and fixation of broadcasts. The right covers the making available of the above subject matter in such a way that the members of the public may access them from a place and at a time individually chosen by them.

As for the right of communication and making available to the public, there are two basic elements. The first one is to offer a work or a subject matter on a server that is available to the public. In this way, a work or a subject matter is qualified to protection. Whether the work or subject matter is communicated on line or retrieved by users is irrelevant for the protection. The second element is that any individual may select a place and a time to access the work or the subject matter. It is the on-demand retrieval that the individual selection of place and time of access together with the simultaneous accessibility is sufficient. In this way, a user's decision is crucial. Every time when he or she retrieves a work or subject matter in a place and at a time chosen by him or her, he or she can get the work or subject matter he wanted. Therefore, if he or she switches into a program that is running out of his or her control, it is not an on-demand and not covered by the right of communication and making available to the public.[13]

Article 3(3) of the EU Copyright Directive further provides that the rights referred in paragraphs 1 and 2 shall not be exhausted by any act of communication to the public or making available to the public as set out in this article.?This provision only serves to clarify the fact that the right of communication and making available to the public is not exhausted by offering work or other subject matter on line and the owner of the work or subject matter still enjoys a right to control further communication.

In the draft of the Directive, there was an Article 3(4) reads as 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.?This also served to clarify the fact the provision of physical equipments has nothing to do with the communication and making available to the public. This paragraph was proposed by the European Parliament but was deleted from Article 3 and put into the recitals.

4. Exceptions and Limitations

Article 5 of the EU Copyright Directive deals with the exceptions and limitations of the copyright in the Internet. Although the main purpose of the Directive is to harmonize the Member's copyright law concerning the Internet, it does not reach the purpose well in the exceptions and limitations. During the formulation of the Directive, most of the time and the energy were spend on how to harmonize the exceptions and limitations, and what should be or not should be included in the directive. This demonstrates that the exceptions and limitations are located in the center of the copyright system.

In the US copyright system, the copyright law only lists some guidelines for the fair use. There are four factors to be considered to decide whether a given use is fair or not: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose; the nature of the copyrighted works; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. Besides the guidelines above, the US copyright law only lists criticism, comment, news reporting, teaching, scholarship, and research as examples of the fair use.[14]

Like the US copyright law, the EU Copyright Directive also makes clear a general standard for the exceptions and limitations. Of cause this is not the four-factor guideline in the US copyright law but a three-step test coming from the Berne Convention. Article 5(5) reads as the exceptions and limitations shall only be applied in certain special cases which do not conflict with a normal exploitation of the work or other subject matter and do not unreasonably prejudice the legitimate interests of the right holder.?In contrasting with the US copyright law, however, the EU Copyright Directive establishes specifically many exceptions and limitations in detail. Among other things, article 5 deals with temporary acts of reproduction? Exceptions and limitations to the reproduction right? and exceptions and limitations to both reproduction right and the right of communication and making available to the public? Because temporary acts of reproduction?has been discussed in part 2 of this paper, it will be not touched here.

Article 5(2) deals with the exception or limitations only concerning with reproduction right. According to this subsection, member state can limit the reproduction right in respect of reproductions on paper or any similar medium, effected by the use of any kind of photographic technique or by some other process having similar effects, provided that the right holders receive fair compensation. But sheet music is not included in the exception. This is only relating to photocopying. The same standard also applies in respect of reproductions on any medium made by a natural person for private use and for ends that are neither directly nor indirectly commercial, on condition that the right holders receive fair compensation which takes account of the application or non-application of the technological measures to the work or subject matter. This is not only relating to analogue reproduction in audio and visual sector, but also relating to digital reproduction.

In light of the provision above, some argues that the Directive has introduced a right to an equitable remuneration for private reproduction. It should be noted that this right is not only concerned with analogue reproduction, such as photocopying, audio and visual recording, but also concerned with new digital reproduction. Now many EU countries have levies on blank tapes and photocopying equipments, which is relating to analogue reproduction. But how can a member state levy in digital reproduction and the Internet? It may be levies on computers, printers, and printing papers, etc. But still it should be clarified in the law.

In addition to the exceptions and limitations concerning reproduction right above, article 5(2) provides that member countries can exempt some specific reproductions made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage. Other exceptions and limitations include: ephemeral recordings of works made by broadcasting organizations by means of their own facilities and for their own broadcasts; the preservation of these recordings in official archives; and reproductions of broadcasts made by social institutions pursuing non-commercial purpose on condition that the right holders receive fair compensation.

Article 5(3) deals with the exceptions and limitations both for reproduction right and the right of communication and making available to the public. This subsection describes 15 situations in detail that can be exempted from reproduction right and the right of communication and making available to the public. Some of the exceptions and limitations are as follows: Use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name is indicted; uses, for the benefit of people with a disability, which are directly related to the disability and of a non-commercial nature, to the extent required by the specific disability; reproduction by press, communication to the public or making available of published articles on current economic, political or religious topic or of broadcast works or other subject-matter of the same character, in cases where such use is not expressly reserved, and as long as the source, including the author's name is indicated; quotations for purpose 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 is indicated, and that their use is in accordance with fair practice, and to the extent required by the specific purpose; use for the purpose of public security or to ensure the proper performance or reporting of administrative, parliamentary or judicial proceedings.

According to Article 5(4), member states may provide similar exceptions and limitations concerning reproduction right to the right of distribution, to the extent justified by the purpose of the authorized act of reproduction. This means that all the exceptions and limitations concerning with reproduction right can be applied to distribution right.

It is worth to point out that article 5 of the Directive has set up the boundaries of the exceptions and limitations for the copyright. This means that the exceptions and limitations in the Directive are exhaustive ones, and member states cannot implement new ones in their national law. In regard with this, many criticize that the directive has frozen the development of new exceptions and limitations, especially in such an age the technology is rapidly developing.[15]

5. Protection of Technological Measures

Traditionally, works and other subject matter are protected by copyright. Because of the digital technology and the Internet, however, works and other subject matter now can be protected as well by some technological measures, such as the measures to control access to or reproducing the copyrighted works. Although technological measure can be used to protect works and other subject matter and to enforce copyright and related rights, it can be circumvented by some acts and device or some other technology. If the copyright system does not prohibit various circumventions, the copyrighted works and other subject matters will not be protected effectively in the digital environment. Thus, in order to effectively protect works and other subject matters, copyright system begins to protect the technological measures that protect the works and other subject matters.

WCT and WPPT first provide the protection of technological measures in international legislation. Article 11 of WCT, titled as obligations concerning Technological Measures? requires contracting countries to provide legal protection and effective legal remedies against the circumvention of effective technological measures that are used by authors in connection with the exercise of their rights and that restrict acts, in respect of their works, which are not authorized by the authors concerned or permitted by law. Article 18 of WPPT has a similar provision concerning performances and phonograms. According to the provisions above, WCT and WPPT only obligate contracting states to prohibit the acts of circumventions, but do not prohibit manufacturing and delivering the devices that are used to circumvent the technological measures related.

Article 6 of EU Copyright Directive, titled obligations as to technological measures? deals with the protection of technological measures. According to article 6(4), the expression technological measures?means any technology, device or component that, in the normal course of its operation, is designed to prevent or restrict acts, in respect of works or other subject matter, which are not authorized by the right holder of any copyright or any right related to copyright as provided for by law or the sui generis right provided in the EU Database Directive. Right holders may control the use of the protected works and other subject matter by an access control or protection process, such as encryption, scrambling or other transformation of the work or other subject matter or a copy control mechanism, which achieves the protection objective.

There are two significant differences between EU Copyright Directive and the two treaties WCT and WPPT. First, the EU Copyright Directive not only prohibits the circumvention actions, but also prohibits the manufacture and sale of devices that are used to circumvent the technological measures. Article 6(1) requires the member states to provide adequate legal protection against the circumvention of any effective technological measures. Here the precondition for the punishable circumvention actions is the knowledge or with reasonable grounds to know that he or she is pursuing that objective. Furthermore, Article 6(2) prohibits the manufacture, import, distribution, sale, rental, advertisement for sale or rental, or possession for commercial purposes, of devices, products or components, or the provision of services in the following cases: which are promoted, advertised or marketed for the purpose of circumvention of any effective technological measures; which have only limited commercial significant purpose or use other than to circumvent any effective technological measures; which are primarily designed, produced, adapted or performed for the purpose of enabling or facilitating the circumvention of any effective technological measures. Second, WCT and WPPT protect the technological measures relating to copyrighted works, performances, and phonograms. The EU Copyright Directive, however, not only protect those technological measures relating to works, performances, and phonograms, but also the technological measures relating to the sui generis database right.

The Digital Millennium Copyright Act of the United States, while protects the technological measures relating to the copyrighted works, also set up some limits on such protection, such as reverse engineering, encryption research, security testing.[16] The EU Copyright Directive, however, does not provide such exceptions or limitations for the protection of technological measures. Thus, on the one hand, it protects technological measures both against the circumvention actions and the manufacture and sale of the devices used to circumvent technological measures. On the other hand, it does not set up any limits on such protections. So many criticize that the Directive has chosen to provide extremely broad legal protection to the technological measures. As a result, even circumvention for totally legal purpose, including manufacture and sale of a technological device designed to permit a lawful use, is prohibited. [17]

There is a serious concern in the world about the theory of fair use or the exceptions and limitations of copyrights in the context that the technological measures are protected too much. In the traditional way, if one can get a copyrighted work, one can fairly use it or benefit from the exceptions and limitations of copyright. According to the new provision, however, one cannot circumvent the technological measures in order to get the copyrighted work and fair use it. If, because of the technological measures, one could not get the copyrighted work, there is no fair use. In this respect, even if a work is in the public domain but protected by some technological measures, one may have no chance to use it. Thus the theory of fair use or the exceptions and limitations of copyright are threatened by technological measures in the digital world.

The EU Copyright Directive addresses this concern by a two-step method. First, the Directive obligates the member states to promote voluntary measures?taken by right holders, including the conclusion and implementation of agreements between right holders and other parties concerned, to accommodate achieving the objectives of exceptions and limitations in national law in accordance with this Directive. Second, if the right holders did not take such voluntary measures? or the right holders and other parties did not reach such agreements in a reasonable period, member states should step in and take appropriate measures to ensure the right holders to provide beneficiaries of such exceptions and limitations. This can be done by modifying an implemented technological measure or by other means. It is believed that by this two-step method, the legal protection of technological measures will not prejudice public policy, including the exceptions and limitations set up in article 5 of the Directive.[18]

In light of article 6(4), the two-step method shall apply with the following seven exceptions and limitations: reprography; certain reproduction acts by libraries, educational institutions, museums, and archives; certain ephemeral recordings and archival copies by broadcasts; the reproductions of broadcasts by certain social institutions; certain uses for teaching and scientific research; certain uses by the disabled; and uses for public security and for administrative, parliamentary and judicial proceedings. In addition to the seven cases above, as for private reproductions, article 6(4) provides that the member states may take similar two-step method to ensure the beneficiary of that exception or limitation. Besides, voluntary measures taken by right holders, including agreements between right holders and other parties concerned, as well as measures taken by member states, must take account of the condition of fair compensation and do not prevent right holders from adopting adequate measures regarding the number of reproductions.[19]

When right holders take certain voluntary measures, including those measures applied in the implementation of the agreements between the right holders and other parties concerned, when the member states take certain measures to ensure the exceptions and limitations concerned, these measures themselves may become one kind of technological measures and should enjoy legal protection.[20]

Although DMCA of the United States provides protection to technological measures both against the act of circumvention and the manufacture and sale of circumvention devices as well, it does not adequately address the relationship between the protection of technological measures and the theory of fair use or the exceptions and limitations of copyright. In this respect, the EU Copyright Directive has exploited the question quite well and put forward a two-step method to resolve the problem. This is worth of other countries to learn as an example. However, if the right holders did not take ?oluntary measures?within a reasonable period of time, how a member state may step in and what kind measures a member state may take are still problems to be resolved in the near future.

6. Protection of Rights Management Information

Rights management information means the information identifying the work or other subject matter, the author or other right holder, or information about the terms and conditions for the use of the work or other subject matter, and any numbers or codes that represent such information. In the EU Copyright Directive, rights?include copyright, related right, or even sui generis database right. Because there is no related right?or neighboring right?in the US copyright system, DMCA uses a different term as copyright management information?

Rights management information is very important in the environment of the digital technology and the Internet. Because it can identify the work or other subject matter, the author or other right holder, and can provide the terms and conditions for the use of the work or other subject matter, it facilitates the distribution or use of works and other subject matters. Right holders are encouraged everywhere to use rights management information and to license their works or other subject matter via rights management information. In the environment of digital technology and the Internet, however, the electronic rights management information can be easily removed or altered. Thus rights management information must be protected effectively.

WCT and WPPT first provide that rights management information shall be protected adequately and effectively. Afterwards the United States, Japan, and the EU followed the provisions in WCT and WPPT in their legislatures in this respect. Because the EU Copyright Directive closely follows the provisions of WCT and WPPT in the protection of rights management information, and because this report is a comment on the EU Copyright Directive, this report will solely discuss the provision in the Directive rather than in WCT and WPPT.

Article 7 of the Directive obligates the Member States to prohibit any person knowingly performing two kinds of acts without authority. The first one is to remove or alter any electronic rights management information without authority. The other one is to distribute, import for distribution, broadcast, communicate or make available to the public of works and other subject matter from which electronic rights management information has been removed or altered without authority. The precondition for the prohibition is that such person knows, or has reasonable grounds to know, that by doing so he or she is inducing, enabling, facilitating or concealing an infringement of any copyright or related rights. Here as in the case of protection of technological measures, knowledge or having reasonable grounds to know is the precondition for liabilities.

In contrasting with WCT, WPPT, the DMCA of the United States, the EU Copyright Directive has two significance differences in relating to the protection of rights management information. With respect to WCT and WPPT, the protection of rights management information is concerned with works, performances, and phonograms. In addition to works, performance, and phonograms, however, the EU Copyright Directive extends the protection to database as well. With respect to DMCA, in addition to prohibit the two kinds of actions provided in EU Copyright Directive, it also provides that nobody shall knowingly provide false copyright management information, or distribute, import for distribution of copyright management information that is false. There is no such prohibition in the EU Copyright Directive.

7. Conclusion

One purpose of the EU Copyright Directive is to harmonize the legislation of the Member States concerning the protection of copyright and related rights in the Internet. In this respect, it is no doubt that the Directive shall harmonize some aspects of the copyright system in the European Union, especially with respect to reproduction right, distribution right, the right of communication and making available to the public, and the protection of technological measures and rights management information. Thus the legislatures of the Member States shall be identical at large with respect to the copyright protection in the Internet.

Another purpose of the Directive is to implement WCT and WPPT and ratify two treaties thereafter within the EU. WCT and WPPT shall enter into force three months after 30 instruments of ratification or accession by States have been deposited. Up to February 2002, there were 34 ratifications or accessions for WCT and 31 for WPPT, and WCT entered into force on March 6, 2002, and WPPT will entered into force on May 20, 2002. Now the picture of the copyright protection in the Internet will be changed totally worldwide.

In comparing with the DMCA of the United States, the EU Copyright Directive bears some special characters in implementing WCT and WPPT, such as the use of the term the right of communication and making available to the public, the step-in method by state where necessary to guarantee exceptions and limitations of copyright. All of these are worth of China to learn, especially that both EU and China belong to the same continental legal system.

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[1] This is the final report submitted to EU-China Higher Education Cooperation Program, which financially supported the author of the report to be a guest researcher from Feb. to July 2001, at Max-Planck-Institute for Foreign and International Patent, Unfair Competition, and Copyright Law in Munich, Germany. ?2001by Li, Mingde

[2] Li, Mingde, Professor of Law, Intellectual Property Center, China Academy of Social Sciences; arbitrator, China International Economic and Trade Arbitration Commission.

[3] Information Infrastructure Task Force: Intellectual Property and the National Information Infrastructure, September 1995.

[4] Green Paper on Copyright and Related Rights in the Information Society, COM (95) final, July 1995; Follow-up Green Paper on Copyright and Related Rights in the Information Society, COM (96), Nov. 1996.

[5] Dr. Mihaly Ficsor, Copyright and Related Rights at the Footstep of the 21st Century, WIPO/NCAC Regional Workshop for Asian and the Pacific on Copyright and WIPO ?nternet Treaties? Shanghai, October 12 and 13, 1998.

[6] Digital Millennium Copyright Act, Public Law 105-304, Oct. 28, 1998. (http://thomas.loc.gov)

[7] Copyright Law of Japan, 1999.

[8] See article 9 and 13 of EU Information Society Directive.

[9] Dr. Mihaly Ficsor, Copyright and Related Rights at the Footstep of the 21st Century, WIPO/NCAC Regional Workshop for Asian and the Pacific on Copyright and WIPO ?nternet Treaties? Shanghai, October 12 and 13, 1998.

[10] Dr. Mihaly Ficsor, Copyright and Related Rights at the Footstep of the 21st Century, WIPO/NCAC Regional Workshop for Asian and the Pacific on Copyright and WIPO ?nternet Treaties? Shanghai, October 12 and 13, 1998.

[11] For example, Information Infrastructure Task Force: Intellectual Property and the National Information Infrastructure, September 1995, at 213.

[12] Silke von Lewinski, Proposed EC Directive on Copyright and Related Rights in the Information Society as It Porgress, IIC No.7, 1999.

[13] Silke von Lewinski, Proposed EC Directive on Copyright and Related Rights in the Information Society as It Porgress, IIC No.7, 1999.

[14] See Article 106 of the US copyright law.

[15] For examples, see Thomas C. Vinje, Should We Begin Digging Copyright's Grave? 2000 EIPR, issue 12; Bernt Hugenholtz, Why the Copyright Directive is Unimportant, and Possibly Invalid, 2000 EIPR, issue 11.

[16] Digital Millennium Copyright Act, section 1201.

[17] Thomas C. Vinje, Should We Begin Digging Copyright? Grave? 2000 EIPR, issue 12.

[18] See recitals 51 and article 6 (4) of the EU Information Society Directive.

[19] See recitals 52 and article 6 (4) of the EU Information Society Directive.

[20] See recitals 51, 52 and article 6 (4) of the EU Information Society Directive.