Information Society Directive

The Information Society Directive is a directive of the European Union that was enacted to implement the WIPO Copyright Treaty and to harmonise aspects of copyright law across Europe, such as copyright exceptions. The directive was first enacted in 2001 under the internal market provisions of the Treaty of Rome.
The draft directive was subject to unprecedented lobbying and was considered a success for Europe's copyright laws. The 2001 directive gave EU Member States significant freedom in certain aspects of transposition. Member States had until 22 December 2002 to transpose the directive into their national laws, although only Greece and Denmark met the deadline.



Articles 2–4 contain definitions of the exclusive rights granted to under copyright and related rights. They distinguish the "reproduction right" from the right of "communication to the public" or "making available to the public" : the latter is specifically intended to cover publication and transmission on the internet. The two names for the right derive from the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The related right for authors to authorise or prohibit any form of distribution to the public by sale or otherwise is provided for in Article 4.

Exceptions and limitations

Article 5 lists the copyright exceptions which Member States may apply to copyright and related rights. The restrictive nature of the list was one source of controversy over the directive: in principle, Member States may only apply exceptions which are on the agreed list, although other exceptions which were already in national laws on 2001-06-22 may remain in force . The Copyright Directive makes only one exception obligatory: transient or incidental copying as part of a network transmission or legal use. Hence internet service providers are not liable for the data they transmit, even if it infringes copyright. The other limitations are optional, with Member States choosing which they give effect to in national laws.
Article 5 allows Member States to establish copyright exceptions to the Article 2 reproduction right in cases of:
Article 5 allows Member States to establish copyright exceptions to the Article 2 reproduction right and the Article 3 right of communication to the public in cases of:
According to Article 5 copyright exceptions may 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 rightholder", therefore the directive confirms the Berne three-step test.

Technological protection measures

Article 6 of the Copyright Directive requires that Member States must provide "adequate legal protection" against the intentional circumvention of "effective technological measures" designed to prevent or restrict acts of copying not authorised by the rightholders of any copyright, related right or the sui generis right in databases. Member States must also provide "adequate legal protection" against the manufacture, import, distribution, sale, rental, advertisement, or possession "for commercial purposes of devices, products or components or the provision of services which":
In the absence of rightsholders taking voluntary measures the Directive provides that Member States must ensure that technological measures do not prevent uses permitted under Article 5 on copyright exceptions, see Article 6. Article 7 requires that Member States must provide "adequate legal protection" against the removal of rights management information metadata.
Unlike Section 1201 of the Digital Millennium Copyright Act, which only prohibits circumvention of access control measures, the Copyright Directive also prohibits circumvention of copy protection measures, making it potentially more restrictive. In both the DMCA and the Copyright Directive, production, distribution etc. of equipment used to circumvent both access and copy-protection is prohibited. Under the DMCA, potential users who want to avail themselves of an alleged fair use privilege to crack copy protection would have to do it themselves since no equipment would lawfully be marketed for that purpose. Under the Copyright Directive, this possibility would not be available since circumvention of copy protection is illegal.

Implementation by member states

Member States had until 22 December 2002 to implement the Copyright Directive into their national laws. However, only Greece and Denmark met the deadline, while Italy, Austria, Germany and the UK implemented the directive in 2003. The remaining eight Member States were referred to the European Court of Justice for non-implementation. In 2004 Finland, the UK, Belgium and Sweden were held responsible for non-implementation.
National implementation measures include:
In 2016, leaked documents revealed that two new provisions were under consideration. The first, aimed at social media companies, sought to make automated screening for copyrighted content mandatory for all cases in which a user can upload data. The second proposed that news publishers should benefit financially when links to their articles are posted on a commercial platform. Responding to criticism, Axel Voss admitted that the law was "maybe not the best idea" but went on to support its passage and draft some of the language being used to amend Article 11.
The update has been widely derided as a link tax. Its critics include German MEP Julia Reda, Internet company Mozilla and copyright reform activists associated with the Creative Commons. Some discussion has concerned the inability for news agencies to opt out of the payment system and the claim that ancillary rights for news snippets contradicts the Berne convention.