Ref. Ares(2017)1377291 - 16/03/2017
DSM Commissioner Project Team meeting – 20 July 2016
Copyright reform (second stage)
The aim of this note is to provide an overview of the main measures that are likely to form part of
the copyright reform, which is scheduled for adoption on 21 September 2016. These measures
are based on the political guidelines contained in the DSM Strategy and in the December 2015
Copyright Communication. The note also highlights a number of specific issues that require
particular attention. These issues relate to the sharing of value between actors involved in the
online distribution of content ('value gap', 'publishers' right' and fair remuneration of creators)
which have been
subject to recent public consultations1.
The 6 May 2015 DSM Strategy set out the main parameters for a review of the copyright
framework with a view to modernising the current copyright system. The DSM Strategy thus
focussed on key areas where the current copyright system could be improved and adapted to the
borderless digital world, while stressing the importance of keeping a fair balance between the
interests of consumers, right holders and service providers.
The September 2016 copyright package will address three priorities areas identified in the DSM
Strategy i.e. (i) harmonised exceptions in the area of access to knowledge (e.g. education and
research including text and data mining, as well as disabled persons) (ii) cross-border access to
digital content and (iii) a better functioning of the online market for the distribution of copyright-
protected content. For another DSM priority, cross-border portability of online content services,
a draft Regulation was adopted in December 2015. Furthermore, the DSM strategy announced
that these measures should be complemented by a review of the IPR Enforcement Directive.
Proposals on this are scheduled towards the end of 2016.
The measures envisaged under each of the three main priority areas are discussed below.
1. Adapting copyright exceptions in certain key areas
Copyright exceptions allow the use of protected works without the authorisation of right
. Most Member States have enacted some form of exception in these areas but these
national versions of the exceptions vary in a number of respects, thus creating legal uncertainty
and fragmentation. Further harmonising existing exceptions is thus an important element of the
. The overall objective is to accommodate new uses, particularly those
which have important societal relevance (i.e. education, research, cultural heritage
1 Public consultation on the regulatory environment for platforms, cloud & data, liability of intermediaries,
collaborative economy, which ran from 24 September to 6 January 2016 and Public consultation on the role of
publishers in the copyright value chain and on the 'panorama exception', open from 23 March until 15 June 2016.
The current EU legal framework allows, under certain conditions, the use of
protected works for the purpose of illustration for teaching. The proposed measure would
make this exception mandatory for Member States and clarify and update its scope, in
particular to take account of the use of digital teaching tools and the development of distance
learning programmes and will allow cross-border uses of protected works for teaching
purposes, thus providing legal certainty for users (educational establishments, teachers,
students). However, since a change in the scope of the teaching exception may significantly
affect national educational markets, including educational publishers, mitigating element has
been included in the proposed measure, i.e. Member States would have the possibility to
decide that the exception would come into play only if licences covering the same uses are
not available on the market.
: Mandatory exception with a cross-border effect covering digital and online
uses in the context of illustration for teaching, with the option for MS to make it (partially or
totally) subject to the availability of licences.
Although the Copyright Directive already includes an exception for research
purposes, this exception does not provide for a sufficiently clear framework for text and
data mining (TDM)
activities carried out by researchers. Therefore it is proposed to create a
new, self-standing exception for TDM. Since TDM is becoming a key tool in the area of
, intervention in this area is important to support Europe's future competitiveness. It
is proposed to give this exception a relatively broad scope
, i.e. to apply it to all entities
carrying out public interest research, for all types of research activities (non-commercial and
commercial). Commercial organisations however, would need to continue acquiring licences
for carrying out text and data mining.
: Mandatory exception applicable to public interest research organisations
covering text and data mining for the purposes of both non-commercial and commercial
Preservation of cultural heritage:
intervention is meant to enable cultural heritage
institutions (e.g. museums and film heritage institutions) to preserve the vast amount of
works they hold in their collection without having to seek prior authorisation of right holders.
: Mandatory harmonised exception for preservation purposes by cultural
a legislative proposal implementing the Marrakesh Treaty (disability
exception for all types of print disabilities) will also be part of the copyright package.
Areas where no legislative action is envisaged at this stage
Other exceptions were listed in the December Communication as areas where EU action may be
considered in the short or longer term. A recent public consultation covered the issue of the 'panorama exception'2
. Preliminary assessment of the results revealed no clear evidence of a
need for and value added of EU action, in particular since solutions already exist in most
Member States and new legislation in this field has recently been adopted in several Member
States where it was still missing (FR and BE).
In relation to remote consultation of works held in libraries
pending ECJ Court case on the closely related question of electronic lending is expected to
indicate whether this activity is already permitted under EU law. As regards private copy
announced in the December Communication, no legislative action is envisaged at this stage.
2. Measures to ensure wider access to content across borders
A first deliverable for consumers in this area was already adopted last December, i.e. a draft
Regulation on the portability
of online content services. Negotiations are progressing well and
could be concluded by mid-2017. Moreover, the Copyright Communication announced further
measures to facilitate rights clearance
for online cross-border distribution of content. In line
with the political guidelines of the Communication, these measures would aim at gradually
increasing cross-border offers
across the EU, without however forcing right holders to license
their content on a pan-European basis.
Measures to increase cross-border availability of online TV and radio programmes:
proposed measures are inspired
by mechanisms in place in the Cable and Satellite Directive.
It is proposed to apply the country of origin principle
to clear the rights required for certain online services of broadcasters
2 Public consultation on the role of publishers in the copyright value chain and on the 'panorama exception', open from 23 March until 15 June
Moreover, it is proposed to extend the cable copyright clearance
regime to other forms of
. This should lead to more channels from other Member States being
made available through these other re-transmission services (e.g. IPTV).
: (1) Application of country of origin to the clearing of rights for
broadcasters' online services ancillary to their initial broadcast, and
(2) Mandatory collective
management of rights to retransmission of TV / radio broadcasts by means of IPTV and other
equivalent retransmission services.
Measures to facilitate the exploitation of European works on video-on–demand
this would be promoted by a mechanism supporting right holders and distributors
to reach agreements on licences. A dialogue with industry would also be initiated to find
ways to increase exploitation of works4.
: Stakeholders' dialogue + Obligation for Member States to establish a
negotiation mechanism to overcome obstacles to the availability of audiovisual works on VoD.
Measures to facilitate licensing of heritage content (out of commerce works):
enable cultural heritage institutions to digitise and disseminate works that are out of
commerce, which in many cases can still hold great cultural, scientific, educational, historical
and entertainment value.
: EU legislative intervention (i) requiring MS to put in place legal
mechanisms to facilitate collective licensing agreements for all types of OOC works and to foster
national stakeholder frameworks, and (ii) giving cross-border effect to such legal mechanisms.
3. Achieving a well-functioning copyright market place
4 These measures would be complemented by non-legislative actions to be presented in a separate Communication (development of 'ready-to-
offer' catalogues of European films; licensing hubs; improved interoperability of standard identifiers; development of an EU-level aggregator of
legal offers; EU support for dubbing and subtitling of works).
Increased clarity as regards the use of online content by platforms, which store and give access to
the public to large amounts of content uploaded by their users, in particular through specific
content identification obligations.
are also affected by the problem of 'value gap' described above and
therefore support action to clarify the legal framework of the activities of online
intermediaries. However, they are claiming that this action should be complemented by the
recognition of a new, exclusive right for publishers in EU law
. They point out that this
would strengthen their bargaining position, give them more control over the use of their
content, facilitate enforcement and put them on par with other content producers
(broadcasters, music and film producers), who already benefit from an exclusive right.
Over the past years news publishers, which perform an essential role in democracies and
invest significant resources in journalistic content and online services, have faced significant
difficulties in their dealings with online platforms.
At national level, in Germany and in Spain, two types of legal solutions also dubbed 'Google
taxes' have been attempted, however with mixed results in both cases and even a highly
confrontational situation in Spain (Google suspended its Google News service). The German
and Spanish schemes followed however an approach distinct from the creation of a new
fully-fledged right6 and entailed mandatory remuneration, which is not the case of the
envisaged EU intervention.
Introduction in EU law of a related right covering online uses of news
publications + introduction, in EU law, of the possibility for MS to provide that publishers may
claim compensation for uses under an exception (in relation to national copyright levy systems)
Fair remuneration of authors and performers
: With the development of new online
distribution channels, the lack of information available to authors and performers as regards
the exploitation of their works by producers or publishers (to whom authors and performers
often transfer their rights) has become more acute. EU intervention in this area should take
into account that, as they relate to contractual relationships, these issues have generally been
addressed at national level. The proposed measures would improve reporting to authors and
performers and improve their negotiating position. The IA carefully considers the need ot
ensure the proportionality of any intervention.
Imposing transparency obligations on the contractual counterparty of
creators that may be supported by a contract adjustment right and a dispute resolution
Do you consider that taken as a whole these measures represent an ambitious, while realistic,
approach that ensures a balance between the interests of consumers and of right-holders,
contributes to jobs and growth, and that can materialise within a reasonable timeframe?