Appendix 6 - International Music Council

4.5 Copyright
In 1996 WIPO adopted two treaties which aim at modernizing the national copyright laws
in the light of new technical developments, such as the internet: the WIPO Copyright
Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). Both are
concerned with in the protection intellectual property rights in the information society. In
accordance with the WIPO treaties, the European Union passed the EU Directive
2001/29/EC on intellectual property in 22 May 2001. The member states have to implement
this directive. The EU directive accounts not only for EU states, but also for members of
the European Economic Area (EEA).
The following sections describe the implementation process and related discussion of the
EU directive in two countries, Germany and France.
EXAMPLE 1: GERMANY
In Germany the First Law for the Regulation of Copyright in the Information Society
became effective in September 2003. With this step, the so called "first basket", the
legislator realized the imperative aspects of the EU directive. Other aspects of the EU
directive that are not compelling for the member states were left for a second step, the so
called "second basket". The federal Ministry of Justice presented a draft for the second
basket in January 2006 and a slightly revised version was on the 22th March 2006.
According to the relevant minister, the bill aims at a fair exchange of interests between
creators, users, industry, cultural sector and science.
Controversial aspects in the discussion of the amendment of the copyright are:
6. copying for private use
7. technical systems for copy protection and digital rights management
(DRM)
8. flatrate levies
9. a new regulation of the so called unknown possibilities of use
(unbekannte Nutzungsarten).
10. the regulation of copyright for science and research
The EU directive determines that the circumvention of technical protection mechanisms to
create private copies is illegal. Through the "first basket" the German legislator has
implemented this allegation by forbidding the circumvention of "effective technical
measures" for the protection of a copyright protected works without the approval of right's
owner (§95a Abs. 1 UrhG). The phonographic industry, especially the German section of
IFPI e. V. and the Bundesverband der Phonographischen Wirtschaft e. V. demand more
restrictions for the private copy in the "second basket". The German Ministry for Justice
(BMJ) introduced a bagatelle clause (Bagatellklausel) according to which the private users
are not prosecuted for violating the copyrights by making private copies. The ministry does
not want a "criminalization of the school yards" was an argument in the public discussion.
The association of the phonographic industry, however, demands a deletion of this clause
and is supported by the Minister of State in the Federal Chancellery and Commissioner for
Cultural and Media Affairs, Bernd Neumann (CDU). Thus, the bagatelle clause is a
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