Page:The digital public domain.pdf/101

74 access them from a place and at a time individually chosen by them”. The last sentence of Recital 53 specifies that “non-interactive forms of online use should remain subject to those provisions”. What constitutes a non-interactive transmission is unclear. According to one commentator, “only live webcasting, web radio and similar transmissions where the user cannot choose the time of the transmission qualify for non-interactive transmissions”. This means that the exclusion actually extends to any work offered “on-demand”, covering any work transmitted over the Internet, as long as the user is able to choose and initialize that transmission. In view of the fact that most works offered on-demand through DRM systems rely on the conclusion of contracts and the application of TPMs, the scope of this provision is potentially very broad.

In the absence of any clear guideline in the Directive on how to accommodate the exercise of limitations on copyright, it is safe to say that no real harmonisation has been achieved regarding the implementation of article 6(4) of the Directive in the European Union. The implementation of this provision at the national level has led to an array of different solutions and procedures. In some Member States, only individual beneficiaries may claim the application of the limitation, while in other countries, interest groups and other third parties also have the right to do so. In yet other Member States, administrative bodies may be entitled to force rights holders to make the necessary means available to beneficiaries of limitations. Some Member States have adopted the “wait and see” approach, and done nothing to implement the provision.

3.2 TPMs and libraries, archives and museums

When reading the text of article 6(4), it is clear that the negotiation of agreements between rights owners and parties concerned is the European legislature’s preferred method to achieve its objective. As Dusollier points out, the way to contractual negotiations is only realistic when users are easily identifiable, like libraries and archives, broadcasting organisations, social institutions, educational institutions, groups of disabled persons and public entities. However, this is not necessarily the case for all users who may invoke the right to benefit from a limitation pursuant to article 6(4).