¹ Proposal for a Directive of the European Parliament and of the Council on Measures and Procedures to Ensure the Enforcement of Intellectual Property Rights: COM (2003) 46 final, 30 Jan 2003.Google Scholar

² See Cornish, WR, Drexel, J, Hilty, R, and Kur, A ‘Procedures and remedies for enforcing IPRs: the European Commission's proposed Directive’ [2003] EIPR 447Google Scholar

³ Adopted Geneva 1996. It was agreed, very unusually, that each Treaty would only come into force three months after 30 instruments of ratification had been deposited. The text of both treaties may be found at <http://www.wipo.int/treaties/ip/wct/index.html>. See also Reinbothe, J and Lewinski, S von ‘The WIPO Treaties 1996: Ready to Come into Force’ [2002] EIPR 199.Google Scholar

⁴ For details see J Reinbothe and S von Lewinski The WIPO Treaties 1996 (2002); Lewinski, S von, ‘The WIPO Diplomatic Conference on Audiovisual Performances: A First Résumé’ [2001] EIPR 333.Google Scholar

⁵ Directive 92/100 on rental right and lending right, OJ 1992 L346/61; Directive 93/83 on satellite broadcasting and cable retransmission, OJ (1993) L248/15; Directive 96/9 on the legal protection of databases, OJ (1996) L77/20.Google Scholar

⁶ Council Decision 2000/278, OJ (2000) L89/6.Google Scholar

⁷ Directive 2001/29 on Copyright and related rights in the Information Society, OJ (2001) L1767/10.Google Scholar

⁸ The exceptions were Denmark and Greece. See also the Commission statement on the implementation of the Directive on copyright and related rights in the information society (published 29 Oct 2002). Enforcement proceedings were threatened in summer 2003, but have not materialized.Google Scholar

⁹ Arts 2, 3, and 4.Google Scholar

¹⁰ Art 5. See Hugenholtz, B [2000] EIPR 482.Google Scholar

¹¹ The United Kingdom, for example, has implemented the provision essentially verbatim— doubtless a prudent decision, but not one that enhances our understanding of the exception.Google Scholar

¹² To take just a single example, several of the permitted exceptions are made subject to a requirement of ‘fair compensation’. All Member States except the United Kingdom had existing levy systems, and it will be interesting to see how these provisions dovetail. The Directive offers a guideline rather than a definition (Recital 35).Google Scholar

¹³ WCT Art 11, implemented by Art 6 of the Directive.Google Scholar

¹⁴ For one view see Electronic Frontier Foundation ‘Unintended Consequences: Five Years under the DMCA’: <http://www.eff.org/IP/DMCA/unintended_consequences.php>..>Google Scholar

¹⁵ Art 6.4.1: ‘Member States shall take appropriate measures to ensure that right-holders make available to the beneficiary of an exception or limitation provided for in national law … the means of benefiting from that exception or limitation …’.Google Scholar

¹⁶ Directive 2001/84 on the resale right for the benefit of the author of an original work of art, OJ (2001) L272/32. It was first published in 1996.Google Scholar

¹⁷ The category ‘art market professional’ includes art dealers, auctioneers, and galleries, whether acting as seller, buyer, or intermediary: Art 1 (2). However, the resale right does not apply to direct transactions between individuals acting in their private capacity without the participation of an art market professional, or to acts of resale by persons acting in their private capacity to museums which are not for profit and are open to the public (Recital 18).Google Scholar

¹⁸ The minimum sale price above which the right must apply is €3,000. Art 4 set the royalty according to bands: 4 per cent for the portion of the sale price up to €50,000; 3 per cent from €50,000.01 to €200,000; 1 per cent from €200,000.01 to €350,000; 0.5 per cent from €350,000.01 to €500,000; 0.25 per cent above €500,000.Google Scholar

¹⁹ Directive 92/100 (above n 5), Arts 4 and 8(2).Google Scholar

²⁰ C-245/00 Stichting Ter Exploitatie van Naburige Rechten (SENA) v Nederalndse Omroep Stchting (NOS) [2003] ECDR 12. Netherlands law allowed representatives of performing artists and phonogram producers to determine the amount of equitable remuneration by mutual agreement, and failing that to allow the national court to determine it—an approach described by the Court as ‘very protective of the parties and at the same time consistent with Community law’ (Para 45).Google Scholar

²¹ Reportfrom the Commission … on the public lending right in the European Union: COM (2002) 502 final.Google Scholar

²² Agreement on Presidency proposal for Common Political Approach (3 Mar 2003), 7159/03 <http://register.consilium.eu.int/pdf/en/03st07st07159en03.pdf>..>Google Scholar

²³ Text published by the Council 11 June 2003, <http://register.consilium.eu.int/Pdf/en/03/st10/st10404en03.pdf>..>Google Scholar

²⁴ Presidency proposal—Revisionof the European Patent Convention to accommodate the Community Patent, 10958/03 <http://register.consilium.eu.int/pdf/en/03/st10/st10958en03.pdf>..>Google Scholar

²⁵ Commission Consultation on the impact of the Community utility model in order to update the Green Paper on the protection of utility models in the single market, SEC (2001)81307. Summary report of replies to the questionnaire on the impact of the Community utility model with a view to updating the Green Paper on protection by the utility model in the internal market: <europa.eu.int/comm/internalmarket/en/indprop/model/utilreporten.pdf>..>Google Scholar

²⁶ Proposal for a directive on the patentability of computer-implemented inventions COM (2002) 92. The Council Presidency compromise proposal is at <http://register.consilium.eu.int/pdf/en/02/st13/13168en2.pdf>. The proposal is subject to the co-decision procedure. The Legal Affairs Committee of the European Parliament approved a revised draft in June 2003, and in September the Parliament adopted text for the proposed directive..+The+proposal+is+subject+to+the+co-decision+procedure.+The+Legal+Affairs+Committee+of+the+European+Parliament+approved+a+revised+draft+in+June+2003,+and+in+September+the+Parliament+adopted+text+for+the+proposed+directive.>Google Scholar

²⁷ Regulation 6/2002 OJ (2002) L3/1. See also the Implementing and Fees Regulation (Regulation 2245/2002 (OJ (2002) L341/28) and Regulation 2246/2002 (OJ (2002) L341/54) respectively).Google Scholar

²⁸ Directive 98/71 on the Legal Protection of Designs, OJ (1998) L289/28.Google Scholar

²⁹ For further details and comment see C-H Massa and A Strowel [2003] EIPR 68; Levin, KA and Richman, MB [2003] EIPR 111 and Schlotelburg, M [2003] EIPR 383.Google Scholar

³⁰ Directive 96/9 on the Legal Protection of Databases, OJ (1996) L77/20.Google Scholar

³¹ Art 7(1).Google Scholar

³² British Horseracing Board Ltd v William Hill Organisation Ltd [2002] ECDR 4 and Case C-338/02 Fixtures Marketing Ltd v AB Svenska Spel [2003] ECDR CN2.Google Scholar

³³ For more see J Lipton [2003] EIPR 139.Google Scholar