Page 101 - Law and the Media

Law and the Media
Both these Articles are clearly designed to encompass new forms of digital distribution and
publication, such as the Internet.

Exemptions
The Directive sets out an exhaustive list of situations by which Member States may provide
exemptions or defences to infringement of copyright. This gives national governments the
power to adapt the rules to suit national needs. However, it may result in different regulations
in different Member States.

Internet service providers
The group most favoured by the exemptions is Internet service providers. This is because
they are classed as ‘intermediaries’ and regarded as having no independent economic
significance. Article 5(1) of the Directive states:

Temporary acts of reproduction . . . which are transient or incidental [and] an
integral and essential part of a technological process . . . shall be exempted from
the reproduction right.

Berne Convention requirements
The Copyright Directive limits the use of exemption situations by Member States.
Exemptions or defences are only permissible if they satisfy the three-part test set out in
Article 9(2) of the Berne Convention, which requires that an exemption or defence:

Must apply only in special cases
Must not conflict with normal exploitation of the work, and
Must not unreasonably prejudice the legitimate interests of the author.
The result is that the interests of the copyright owner will always be protected, even where
freedom of information is an issue.

Prohibition on exploitation
In addition, Member States are given power under Article 6 of the Copyright Directive to
ensure that those who benefit from any exemptions or defences do not exploit them to keep
information out of the public domain, for example by the use of technology such as
‘firewalls’ and encryption systems.

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