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Official Journal of the European Communities
C 89 E/95
In particular, Article 10(3) of Directive 97/13/EC provides that selection criteria for licensing of scarce resources such as radio frequencies should be ‘objective, non-discriminatory, detailed, transparent and proportionate’. In addition, Article 11(2) states that‘… Member States may, where scarce resources are to be used, allow their national regulatory authorities to impose charges which reflect the need to ensure the optimal use of these resources. Those charges shall be non-discriminatory and take into particular account the need to foster the development of innovative services and competition’.
Consequently, it is for Member States to determine, in accordance with the principle of subsidiarity, what procedures to follow in allocating the limited frequency spectrum available for third generation networks, provided that they comply with the principles of objectivity, non-discrimination, proportionality and transparency established by Community law. The Commission is of the view that the use of auction procedures for the allocation of radio frequencies for third generation mobile networks is not in itself contrary to those principles and cannot as such be subject to an infringement procedure. As for the need to foster the development of innovative services and competition, it depends on the economic effect of the various auction formulae used. Those depend on a number of variables (length of licence, rules for payment of licence fees, conditions for network deployment, and roaming obligations) which cannot yet be assessed. The Commission continues to monitor the licensing process in the Member States with great attention. It is particularly attentive to the need to ensure that the above-mentioned principles are respected, and is making an assessment of the economic impact of the procedures used.
(1) OJ L 192, 24.7.1990. (2) OJ L 17, 22.1.1999.
(2001/C 89 E/101)
WRITTEN QUESTION E-1841/00 by Klaus-Heiner Lehne (PPE-DE) to the Commission (9 June 2000)
Subject: Copyright protection of Community legal texts in the CELEX data bank
1. Is it true that the Commission considers Community legal texts in the CELEX data bank to be covered by copyright?
If so, what does the Commission consider is the basis for this copyright protection?
Is the Commission relying in this connection on Directive 96/9/EC?
4. If so, on what basis does the Commission argue that the Directive should have direct effect in this case even though it has not been transposed by a national law on the copyright protection of legal texts?
5. Does the Commission consider it acceptable for legal texts, which are produced by the Community legislature and should be generally available for public access and use, to be covered by copyright?
6. What is the Commission’s view of the current legal disputes in Germany, for example, between the various licensees?
C 89 E/96
Official Journal of the European Communities Answer given by Mr Bolkestein on behalf of the Commission (28 July 2000)
1. The question whether official texts of a ‘legislative, administrative and legal nature’ (1) are subject to copyright protection has been dealt with differently by legislators in the Member States. In Germany for example, the legislator has clearly opted not protect official texts (2). At Community level, while there is no specific legal provision which applies, the Commission is of the view that legal and quasi-legal texts emanating from the Community institutions are not subject to copyright, regardless of their format and the medium in which they are available. However, legal texts available in their ‘basic’ form should be distinguished from any format which incorporates added value, whether in the form of legal analysis, annotation, indexation, structure or specific processing within the context of a database such as CELEX. Therefore, it is less the basic legal texts in themselves which may be subject to copyright protection than the specific selection, structure, or arrangement of the texts within the CELEX database which may constitute an intellectual creation. In addition, Directive 96/9/EC of the Parliament and the Council of 11 March 1996 on the legal protection of databases (3) (‘the Database Directive’) which harmonised the law pertaining to copyright in databases in the Community, also provides for a sui generis form of protection for non-creative databases under certain conditions. 2. In addition to the Database Directive, various international treaties signed by the Community and its Member States confer copyright protection on compilations of data constituting intellectual creations and this applies without prejudice to any copyright subsisting in the data itself. In this regard, attention is drawn to Article 5 of the World intellectual property organisation (WIPO) Copyright Treaty and Article 10 of the agreement on trade related aspects of intellectual property rights. 3. The Honourable Member is referred to the answers given above.
4. Member States are required to comply with their Community obligations by ensuring that their law fulfils the objectives of the Database Directive. It must be kept in mind that the objective of the Directive is to harmonise protection of databases by conferring copyright protection on certain databases and a sui generis right on non-creative databases. This protection applies irrespective of the eligibility of the contents of that database for protection by copyright or by other rights. Where Member States failed to transpose the Database Directive by the date of implementation or where they do so incorrectly, the question may arise as to whether the particular measure, in this case the Database Directive, is capable of having direct effect, if it confers rights on individuals. That is ultimately a question for the Court of justice. It is for the Commission to consider whether any failure by the Member State involved gives rise to infringement proceedings. 5. As stated above, legal texts emanating from the Community institutions are not protected by copyright in the Commission’s view. The question of whether copyright or sui generis right subsists in the CELEX database is not contrary to the public availability of Community legal information, as the ‘basic’ material or texts contained therein are widely available, on paper as well as in electronic format, at affordable prices and in certain cases free of charge within the context of the EUR-Lex system. Prior permission is not required to reproduce documents from EUR-Lex and reproduction is subject only to acknowledgement of the source. 6. The Commission has been informed of the litigation between two German licensees of the CELEX database, Otto Schmidt Verlag and SEIDL Datenbank Service. To the Commission’s knowledge, this is the only current legal dispute underway between CELEX licensees. This dispute is based on the interpretation of German law and is therefore a matter for the German courts.
(1) Cf. Article 2(4) of the Berne Convention (Paris Act of 24 July 1971 as amended on 28 September 1979), confirmed by the relevant provisions of the World intellectual property organisation (WIPO) Copyright Treaty (adopted by the Diplomatic Conference on 20 December 1996). (2) Cf. Chapter II, 5.-(1) of Part I of Gesetz über Urheberrecht und verwandte Schutzrechte. (3) OJ L 77, 27.3.1996.