Access To Public Information:
A Key To Commercial Growth And Electronic Democracy

Conference - Stockholm
27/28 June 1996

Flags of 15 EU Member States


Overview of national laws

Charles Clark

Copyright will subsist in some, if not all, "official material" in all the Member States. Under most national laws the copyright will be owned by the author but transferred to a public authority by contract. In a number of Member States, such as the Netherlands, Denmark and Sweden, there are provisions which allow publishers

to exercise copyright and this would have the effect of giving the relevant authority the rights in "official material". Some Member States, such as Belgium and Portugal, envisage copyright in works created by employed authors being assigned to the employer, whilst in other Member States copyright in the works of employed authors is vested in the employer. Luxembourg recognises the possibility of copyright in "official material" being assigned to public authorities and being exercised by them. Ireland, Italy and the United Kingdom are the only Member States having specific provisions which create a special type of "official copyright" which is vested in the Government or Head of State. It appears that, by one route or another, the possibility exists in the Member States for public authorities to exercise whatever copyright may exist in "official material".

Many Member States (Denmark, Germany, Greece, Spain, Italy, Luxembourg, Netherlands, Portugal, Sweden) have availed themselves of the option allowed by Article 2(4) of the Berne Convention and excluded certain legal texts from copyright protection. Even in those who have not, some (e.g. France) have denied copyright protection to such "official material" by jurisprudence. Others, such as Ireland and the United Kingdom, give copyright protection to laws and statutes and the full range of "official material".

Most Member States have provisions which allow the use of copyright material, whether "official material" or not, for certain administrative of official purposes. Exceptions allowing works to be used in judicial proceedings are common. Speeches to political meetings or legislative assemblies are frequently excluded from protection, although many laws preserve the rights in respect of collections of such speeches to the author.

Only the United Kingdom has moral rights provisions which are specific to "official material". Ho other legislation addresses the issue. As indicated in chapter 7, it is thought this could be a source of contention in the future.

Hone of the laws has made special provision for "official material" in electronic form. In those cases where the law (e.g. the United Kingdom) makes special provisions relating to electronic media, the aim appears to be to apply the "conventional" law to the new media rather than create new sui generis provisions. It is therefore assumed for the purposes of this study that the laws developed for conventional media apply mutatis mutandis to electronic media and so the survey of national laws can be read as generally applicable.

There was some evidence from the survey that the authorities are producing more and more "official material" in electronic form and a number of government organisations have put information on the Internet, with home pages for different aspects of "official material". In spite of this growing trend, the Member States do not appear to be actively considering whether their national copyright laws are adequate to deal with this new form of exploitation of copyright works or the dissemination of copyright "official material" on the information superhighway.

European Union publications

The copyright status of the publications of the Institutions of the European Union is far from clear. Questions of applicable law and validity of contractual terms require further study and investigation and the inconsistency of contractual practices between Directorate-Generals further clouds the picture. It does however appear that, in some cases, the Commission may be asserting that it owns rights where none exist or belong to third parties.


The basic conclusions we draw from this study are:


The poor response to the questionnaire seems to confirm that the copyright treatment of "official material" is not a burning issue in the interested circles. Problems which do exist centre on particular Member States, such as the United Kingdom, and so may not be susceptible to a Community solution. The lack of evidence of widespread difficulties, combined with the principle of subsidiarity, argue against any action at Community level. In the light of this, we do not think there is a need for Community legislation at present.

We have however identified several areas which may give rise to problems in the future. These were set out in Chapter 7 of this report and the Commission should maintain a watching brief on these topics so that action can be taken quickly if problems arise. In particular, any future Commission action in the field of harmonisation of moral rights needs to take account of the impact on "official material".

Although we do not believe the problems are sufficiently serious or wide-scale to justify legislative action, we recognise that the Commission might come to a different view, either now or at some point in the future. We have therefore provided a draft of a directive which would aim to harmonise the laws relating to "official material" in a manner which would remove copyright obstacles to public access to such "official material". The Berne Convention precludes certain solutions, such as compulsory licensing, and the annexed draft directive goes as far in the direction of limiting copyright in order to improve access to "official material" as we think is possible, whilst respecting the provisions of the Berne Convention.

It is not possible to introduce compulsory licensing of "official material" in such a draft directive without risk of infringement of the provisions of the Berne Convention. If the Commission decides to proceed with a proposal for a directive we believe that the Governments of the Member States and the Commission should consider whether they should volunteer to commit themselves to granting non exclusive licences on fair and non discriminatory terms, or perhaps even to license freely, all "official material" in Rich they hold the copyright. That would appear to be a natural extension of the policy set out in Commission Communication 93/C 156/OS and Council Decision 93/731/EC. Such a voluntary relinquishing of rights could perhaps usefully be included in a Communication and Decision adopted at the same time as any directive on the matter of copyright in "official material".

The publications of the European Institutions will clearly grow both in number and importance in the coming years, both with respect to material produced internally and with reports, studies etc. commissioned from outside bodies. We are not convinced that the Commission has a coherent policy with regard to the copyright implications of all the range of material for which it is in some way responsible. Time constraints have prevented a thorough study of this topic but our impression is that, with the exception of the Publications Office in DG XIII, the Commission services are not always copyright "literate" and aware of all the ramifications of the decisions they take. This should not be taken as a criticism of those concerned since they cannot reasonably be expected to appreciate the intricacies of copyright law, but of the apparent lack of guide-lines on copyright policy and practice which are consistently applied throughout the Commission.

Even if the Commission decides to proceed with a directive, which would have the effect of removing much "official material" from copyright, it would still be involved as a publisher, commissioner and producer of much copyright material. We therefore recommend that the Commission reviews its internal procedures with a view to establishing a clear policy and practice which is applied consistently throughout the various Directorate-Generals.

Any such review needs to look at a wide range of issues, including the consistency of contract terms relating to copyright used by the various Director - Generals; establishing rules to determine which copyright law is applicable in a particular case and ensuring the compatibility of the contract terms with the applicable law; and ensuring that contracts, whether for acquiring or disposing of rights, take greater account of exploitation through electronic media (present policy and practice seems very focused on printed material).

In sum, we believe the Commission needs to review its own internal practices and procedures in relation to copyright in "official material", but that no legislative action is necessary or desirable at present. However, this matter should be kept under review and we recommend that a similar study be made in five years time to ascertain whether the situation has changed to a sufficient degree to warrant action at European level.

The study of national laws has revealed that there are many inconsistencies in the treatment of author's contracts; some national copyright laws leave the matter untouched, others are highly prescriptive about the form contracts should take and which terms are to be deemed null and void. This has surfaced in this study of copyright in "official material" in connection with the Commission contracting authors from any of the 15 Member States but clearly raises wider issues. In the Single Market, cross border author: publisher contracts will increase and since parallel imports can undermine territorial licences, it is expected that contracts will be for the whole of the European Union rather than for exploitation in individual Member States. The present inconsistencies in the national laws are likely to lead to confusion and could prove to be an obstacle to the completion of a single market in copyright works and hinder progress towards the Information Society. Although not strictly within the confines of the present study, we have seen enough to feel able to recommend that the Commission should undertake a study of the statutory provisions in copyright laws relating to authors and publishers' contracts with a view to assessing whether there is a need to harmonise these provisions, especially in the context of the Single Market and the new electronic media which will form the basis of the Information Society.

(1) This contribution is an extract of a study commissionned by the European Commission, Directorate-General XV, Internal Market and Financial Services on 'Rules concerning copyright in works of official authorities'. The conclusions reflect the author's own opinion. Neither the European Commission nor any person acting on behalf of the Commission is responsible for the use which might be made of the following information.

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