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
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
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.