Ref. Ares(2018)2688537 - 24/05/2018
DG EAC enquired if the possibility to clarify other aspects related to the implementation of
this exception could be envisaged, for example by way of flanking measures.
DG TRADE asked why the option of excluding textbooks, or even all types of educational
material, from the scope of the exception was not discussed and whether a distinction
between schools and universities would be relevant in the context of this exception. The
existence of problems related to cross-border uses should be further evidenced. DG TRADE
also asked for clarification as to the reasons for drawing conclusions about the absence of an
international dimension.
LS asked for clarification as to the link between the exception and the availability of
licences under option 3. Overall, the cost/benefit analysis should be significantly
strengthened. The assessment of the impact on fundamental rights should also cover the
impact on freedom of expression.
SG asked whether it would be necessary to harmonise also other parameters of the
exception, such as the extent of the concept of illustration (i.e. how much content is covered
by the notion of illustration). On textbooks, it is necessary to explain why the flexibility
granted by option 3 is considered more appropriate that a general exclusion in EU law. In
general, the report should contain a cost/benefit assessment of all options. Statements
concerning the magnitude of costs or stakeholders' positions should be systematically and
adequately substantiated.
DG ECFIN suggested further economic analysis of the potential impact on the production of
content, in particular by analysing the impacts of existing regimes. The impact of option 3
on right holders should be described as being the same as under option 2 in the event that
MS do not exercise the possibility to take a different approach or introduce certain carve-
outs.
DG CNECT explained that covering also open educational resources would lead to
disproportionate negative impacts. On the scale of the cross border problems, additional
evidence was not available, notably in view of limited feed-back from stakeholders among
educational users and the fact that cross-border uses are often seen as a grey area. The
definition of affiliated students will be clarified. More information on the implementation of
the teaching exception and on how the various national regimes cover cross-border uses will
be added in the Annex. On other aspects related to the implementation of the exception,
additional measures have not been considered due to the absence of clear EU added value
and in view of the variety of national education systems. The exception as it is proposed is
considered compliant with international obligations and will only apply within the Union.
As concerns textbooks, option 3 provides enough flexibility as it enables MS to exclude
them from the scope of the exception. On the link with licences, option 3 is meant to give
MS the flexibility to reach the intended objective, either through an exception of through
another system. A distinction between different types of educational establishment is not
appropriate here since the exception will not go into very detailed aspects. On the impact on
investment in content production, it would be very difficult to verify the existence of a
direct link between specific legal regimes and investments, as numerous other factors could
be at play.
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4.3 Text and data mining
DG JUST stressed the need to develop the fundamental rights assessment further, in
particular as regards privacy.
JRC welcomed option 3 and suggested a combination of option 2 (to cater for the needs of
citizen scientists) and option 3. More references to SMEs as users of TDM should be added.
The impact on society should be better reflected.
DG GROW expressed support for the initiative and for the effort to harmonise exceptions
and allow for cross-border uses. Internal consultations are still ongoing, so further
comments, if any, will be provided in writing.
LS asked for the sentence referring to the UK law on page 23 to be reformulated and raised
concerns about giving the impression that the Commission is considering the UK law to be
compatible with EU law. The scope of public interest research organisations needs to be
defined and clarification should be provided as to the scope of 'scientific research', which
should cover both humanities and life-science.
DG TRADE asked for clarification on the distinction between commercial and non-
commercial and enquired about the definition of citizen scientists and the nature of their
activities.
DG EAC asked for clarity on the exact definition of beneficiaries and on the distinction
between commercial and non-commercial purposes. The formulation of these two
definitions will have a direct influence on the impacts of the measure on right holders. The
IA should more clearly establish that the chosen approach is the one achieving the best
balance between the interests of researchers and the need to preserve investment in content.
DG EAC also recalled the position on the three-step test taken by the College in the
December Communication.
DG RTD stressed the good collaboration with DG CNECT on this topic. Option 3 is the
appropriate approach to cater for the needs of public research organisations. However, the
proposal by JRC of combining option 2 and 3 in order to enable TDM by citizen scientists is
also worth considering. The exact definition of public organisation beneficiaries will require
careful reflection.
DG ECFIN asked for additional clarification about the baseline scenario (uses currently
permitted). Conclusions on economic impacts, in particular regarding the impact on
subscription fees, should be consistent with the data presented.
SG asked for a more detailed analysis under option 2 concerning the shortcomings of
industry-led solutions perceived by researchers and the reasons for stating that their
resistance to these solutions would persist in the future. Impacts of option 3 on corporate
users should also be analysed.
DG CNECT pointed out that there was no clear evidence at this stage of the need to address
the situation of citizen scientists and that it would be advisable not to add another layer of
complexity in this exception. Furthermore, it is difficult to establish a clear distinction
between commercial and non-commercial purposes, which is why it is proposed to define
the scope of the exception by reference to the type of beneficiaries. The definitions will be
drafted more precisely in the legal text but will need to capture the various national
situations. In terms of potential negative impact on right holders, the condition of lawful
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access will be an important mitigating factor. The wording on the UK law referred to by LS
will be revised. CNECT considered that the UK law was not incompatible with EU law but
explained that there was no intention to specifically endorse it in the IA and agreed to adjust
the wording to avoid giving the impression that the Commission is taking a formal position
on its compatibility with EU law.
4.4 Preservation of cultural heritage
DG EAC expressed general support for the initiative. Beneficiaries should be identified in
relation to the objective of long-term preservation, in order to avoid the misuse of the
exception in the context of other types of activities, such as the provision of access to works.
LS enquired about the possible link between the proposed mandatory exception and the new
Public Sector Information Directive and suggested that that link be examined.
SG asked for clarification about the scope of the exception in terms of activities, in
particular whether it could allow the dissemination of snippets. The EU dimension of the
problem should be presented in more detail.
DG CNECT indicated that the exception as such would not allow any type of distribution of
the preserved material, which is the angle from which 'misuse' concerns should be looked at,
as opposed to a too restrictive definition of beneficiaries. This aspect will be the subject of
another area of the impact assessment, covering the digitisation of out-of commerce works,
to be discussed at the next meeting. The PSI Directive is more relevant in that context.
Additional information will be provided on the cross-border dimension but cooperation
between MS in this area is still at an early stage.
Next steps
DGs are invited to send their comments or contributions to DG CNECT (
), with copy to the SG (
), by
04 May. The next meetings of the
ISSG are tentatively scheduled for 19 May, 6 June and 24 June.
[e-signed]
Contact:
Cc.:
Paraskevi
MICHOU,
Jean-Eric
PAQUET,
James
MORRISON,
Elizabeth GOLBERG,
Pauline ROUCH (Cab Juncker)
Ben SMULDERS, Liene BALTA (Cab Timermanns)
Juhan LEPASSAAR; Laure CHAPUIS (Cab Ansip)
Michael HAGER; Bodo LEHMANN (Cab Oettinger)
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List of participants
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