Transposing the Copyright Directive: Legal Protection of Technological Measures in EU-Member States - A Genie Stuck in the Bottle?

Abstract:     
The EU Copyright Directive (EUCD) entered into force on June 22, 2001. The directive is aimed at harmonizing the divergent European copyright regimes and at transposing the WIPO treaties. EU member states were granted 18 months to transpose the provisions of the EUCD into their national laws. However, several member states have not yet implemented the EUCD over one and a half years after the process should have been completed.

This paper asks whether and why Genie is stuck in the bottle. It starts with an overview of the current state of implementation of the European Copyright Directive (EUCD) and then focuses on the ways in which EU member states have transposed the EUCD's provisions on the protection of technological measures into national law.

First, the analysis reveals that uncertainty over provisions aimed at protecting technological measures as well as the definition of crucial terms (such as 'effective measures') persists - even at a basic level. The question, for instance, as to what extent access control mechanisms fall under the definition of technological protection measures has been contested in some member states.

Second, the study explores different ways in which national implementations have addressed the problem of privately applied technological protection measures vis-a-vis the traditional exceptions to copyright. The authors argue that incumbent member states have not made broad use of private copying exceptions and have diverged as far as the implementation of the public policy exceptions are concerned.

Third, a brief analysis of some approaches to sanctions and remedies taken by EU member states suggests that member states have interpreted the relevant provisions of the EUCD in different ways. Differences remain with regard to criminal sanctions in particular.

The study concludes that the EU member states are leaving both the fine-tuning of new legislation and resolution of rather fundamental issues related to the EUCD to the national courts and, ultimately, to the European Court of Justice. The paper suggests that the EUCD has led to a certain level of harmonization of member states' laws, but also identifies and maps significant differences among member states in the field of anti-circumvention laws.

Keywords: copyright, technological protection measures, DRM, Copyright Directive, WCT

JEL Classifications: K19, K33, K20, K42

Working Paper Series