Ref. Ares(2016)4876233 - 30/08/2016
EUROPEAN
COMMISSION
Brussels, XXX
[…](2016) XXX draft
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on copyright in the Digital Single Market
(Text with EEA relevance)
EN
EN
EXPLANATORY MEMORANDUM
1.
CONTEXT OF THE PROPOSAL
•
Reasons for and objectives of the proposal
The evolution of digital technologies has changed the way works and other protected subject-
matter are created, produced, distributed and exploited. New uses have emerged as well as
new actors and new business models. In the digital environment, cross-border uses have also
intensified and new opportunities for consumers to access copyright-protected content have
materialised. Even though the objectives and principles laid down by the EU copyright
framework remain sound, there is a need to adapt it to these new realities. Intervention at EU
level is also needed to avoid fragmentation in the internal market. Against this background,
the Digital Single Market Strategy1 adopted in May 2015 identified the need “to reduce the
differences between national copyright regimes and allow for wider online access to works by
users across the EU”. This Communication highlighted the importance to enhance cross-
border access to copyright-protected content services, facilitate new uses in the fields of
research and education, and clarify the role of online services in the distribution of works and
other subject-matter. In December 2015, the Commission issued a Communication ‘Towards
a modern, more European copyright framework’2. This Communication outlined targeted
actions and a long-term vision to modernise EU copyright rules. This proposal is one of the
measures aiming at addressing specific issues identified in that Communication.
Exceptions and limitations to copyright and neighbouring rights are harmonised at EU level.
Some of these exceptions aim at achieving public policy objectives, such as research or
education. However, as new types of uses have recently emerged, it remains uncertain
whether these exceptions are still adapted to achieve a fair balance between the rights and
interests of authors and other rightholders on the one hand, and of users on the other. In
addition, these exceptions remain national and legal certainty around cross-border uses is not
guaranteed. In this context, the Commission has identified three areas of intervention: digital
and cross-border uses in the field of education, text and data mining in the field of scientific
research and preservation of cultural heritage. The objective is to guarantee the legality of
certain types of uses in these fields, including across borders. As a result of a modernised
framework of exceptions and limitations, researchers will benefit from a clearer legal space to
use innovative text and data mining research tools, teachers and students will be able to take
advantage from digital technology in education and cultural heritage institutions (i.e. publicly
accessible libraries or museums, archives or film or audio heritage institutions) will be
supported in their efforts to preserve the cultural heritage, to the ultimate advantage of EU
citizens.
Despite the fact that digital technologies should facilitate cross-border access to works and
other subject-matter, obstacles remain, in particular for uses and works where clearance of
rights is complex. This is the case for cultural heritage institutions wanting to provide online
access, including across borders, to out-of-commerce works contained in their catalogues. As
a consequence of these obstacles European citizens miss opportunities to access cultural
heritage. The proposal addresses these problems by introducing a specific mechanism to
facilitate the conclusion of licences for the dissemination of out-of-commerce works by
cultural heritage institutions. As regards audiovisual works, despite the growing importance of
video-on-demand platforms, EU audiovisual works only constitute one third of works
1
COM(2015) 192 final.
2
COM(2015) 626 final.
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available to consumers on those platforms. Again, this lack of availability partly derives from
a complex clearance process. This proposal provides for measures aiming at facilitating the
licensing and clearance of rights process. This would ultimately facilitate consumers' cross-
border access to copyright-protected content.
Evolution of digital technologies has led to the emergence of new business models and
reinforced the role of the Internet as the main marketplace for the distribution and access to
copyright-protected content. In this new framework, rightholders face difficulties when
seeking to license their rights and be remunerated for the online distribution of their works.
This could put at risk the development of European creativity and production of creative
content. It is therefore necessary to guarantee that authors and rightholders receive a fair share
of the value that is generated by the use of their works and other subject-matter. Against this
background, this proposal provides for measures aiming at improving the position of
rightholders to negotiate and be remunerated for the exploitation of their content by online
services giving access to user-uploaded content. A fair sharing of value is also necessary to
ensure the sustainability of the news publications sector. News publishers are facing
difficulties in licensing their publications online and obtaining a fair share of the value they
generate. This could ultimately affect citizens' access to information. This proposal provides
for a new right for news publishers aiming at facilitating online licensing of their publications,
the recoupment of their investment and the online enforcement of their rights. It also
addresses existing legal uncertainty as regards the possibility for all publishers to receive a
share in the compensation for uses of works under an exception. Finally, authors and
performers often have a weak bargaining position in their contractual relationships, when
licensing their rights. In addition, transparency on the revenues generated by the use of their
works or performances often remains limited. This ultimately affects the remuneration of the
authors and performers. This proposal includes measures to improve transparency and better
balanced contractual relationships between authors and performers and those to whom they
assign their rights. Overall, the measures proposed in title IV of the proposal aiming at
achieving a well-functioning market place for copyright are expected to have in the medium
term a positive impact on the production and availability of content and on media pluralism,
to the ultimate benefit of consumers.
•
Consistency with existing policy provisions in the policy area
The Digital Single Market Strategy puts forward a range of initiatives with the objective of
creating an internal market for digital content and services. In December 2015, a first step has
been undertaken by the adoption by the Commission of a proposal for a Regulation of the
European Parliament and of the Council on ensuring the cross-border portability of online
content services in the internal market3.
The present proposal aims at addressing several of the targeted actions identified in the
Communication ‘Towards a modern, more European copyright framework’. Other actions
identified in this Communication are covered by the ‘Proposal for a Regulation of the
European Parliament and of the Council laying down rules on the exercise of copyright and
related rights applicable to certain online transmissions of broadcasting organisations and
retransmissions of television and radio programmes’4, the ‘Proposal for a Regulation of the
European Parliament and of the Council on the cross-border exchange between the Union and
third countries of accessible format copies of certain works and other subject-matter protected
by copyright and related rights for the benefit of persons who are blind, visually impaired or
3
COM(2015) 627 final.
4
[Reference to be included]
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otherwise print disabled’5 and the ‘Proposal for a Directive of the European Parliament and of
the Council on certain permitted uses of works and other subject-matter protected by
copyright and related rights for the benefit of persons who are blind, visually impaired or
otherwise print disabled and amending Directive 2001/29/EC on the harmonisation of certain
aspects of copyright and related rights in the information society’6, adopted on the same date
of this proposal for a Directive.
This proposal is consistent with the existing EU copyright legal framework. This proposal is
based upon, and complements the rules laid down in Directive 96/9/EC7, Directive
2001/29/EC8, Directive 2006/115/EC9, Directive 2009/24/EC10, Directive 2012/28/EU11 and
Directive 2014/26/EU12. Those Directives, as well as this proposal, contribute to the
functioning of the internal market, ensure a high level of protection for right holders and
facilitate the clearance of rights.
This proposal complements Directive 2010/13/EU13 and the proposal14 amending it.
•
Consistency with other Union policies
This proposal would facilitate education and research, improve dissemination of European
cultures and positively impact cultural diversity. This Directive is therefore consistent with
Articles 165, 167 and 179 of the Treaty on the Functioning of the European Union (TFEU).
Furthermore, this proposal contributes to promoting the interests of consumers, in accordance
with the EU policies in the field of consumer protection and Article 169 TFEU, by allowing a
wider access to and use of copyright-protected content.
2.
LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
•
Legal basis
The proposal is based on Article 114 TFEU. This Article confers on the EU the power to
adopt measures which have as their object the establishment and functioning of the internal
market.
5
[Reference to be included]
6
[Reference to be included]
7
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
protection of databases (OJ L 077, 27.03.1996, p. 20-28).
8
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167,
22.6.2001, p. 10–19).
9
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental
right and lending right and on certain rights related to copyright in the field of intellectual property (OJ
L 376, 27.12.2006, p. 28–35).
10
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal
protection of computer programs (OJ L 111, 5.5.2009, p. 16–22).
11
Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain
permitted uses of orphan works (OJ L 299, 27.10.2012, p. 5–12).
12
Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective
management of copyright and related rights and multi-territorial licensing of rights in musical works for
online use in the internal market (OJ L 84, 20.3.2014, p. 72–98).
13
Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the
coordination of certain provisions laid down by law, regulation or administrative action in Member
States concerning the provision of audiovisual media services (Audiovisual Media Services Directive)
(OJ L 95, 15.4.2010, p. 1–24).
14
COM(2016) 287 final.
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•
Subsidiarity (for non-exclusive competence)
Since exceptions and limitations to copyright and related rights are harmonised at EU level,
the margin of manoeuver of Member States in creating or adapting them is limited. In
addition, intervention at national level would not be sufficient in view of the cross-border
nature of the identified issues. EU intervention is therefore needed to achieve full legal
certainty as regards cross-border uses in the fields of research, education and cultural heritage.
Some national initiatives have already been developed to facilitate dissemination of and
access to out-of-commerce works. However, these initiatives only exist in some Member
States and are only applicable on the national territory. EU intervention is therefore necessary
to ensure that licensing mechanisms for the access and dissemination of out-of-commerce
works are in place in all Member States and to ensure their cross-border effect. As regards
online exploitation of audiovisual works, to foster the availability of European works on
video-on-demand platforms across the EU, there is a need to facilitate negotiations of
licensing agreements in all Member States.
Online distribution of copyright-protected content is by essence cross-border. Only
mechanisms decided at European level could ensure a well-functioning marketplace for the
distribution of works and other subject-matter and to ensure the sustainability of the
publishing sector in the face of the challenges of the digital environment. Finally, authors and
performers should enjoy in all Member States the high level of protection established by EU
legislation. In order to do so and to prevent discrepancies across Member States, it is
necessary to set an EU common approach to transparency requirements and mechanisms
allowing for the adjustment of contracts in certain cases as well as for the resolution of
disputes.
•
Proportionality
The proposal provides for mandatory exceptions for Member States to implement. These
exceptions target key public policy objectives and uses with a cross-border dimension.
Exceptions also contain conditions that ensure the preservation of functioning markets and
rightholders' interests and incentives to create and invest. When relevant, room for national
decision has been preserved.LS: to be reviewed in line with LS comments in note: " When
possible without endangering the aim of the directive , room for national approaches has been
preserved" or some such wording
The proposal requires Member States to establish mechanisms aiming at facilitating the
clearance of copyright and related rights in the fields of out-of-commerce works and online
exploitation of audiovisual works. Whereas the proposal aims at ensuring a wider access and
dissemination of content, it does so while preserving the rights of authors and other
rightholders. Several conditions=? out-out possibilities are not conditions and generally: see
above comment are put in place to that effect (e.g. opt-out possibilities, preservation of
licensing possibilities, participation in the negotiation forum on a voluntary basis). The
proposal leaves sufficient room= sufficient room? If at all (but see LS general issue on this
matter) turn round and say something along the lines of "the proposal does not go further
than necessary for achieving the intended aim, leaving MS a degree room.." for Member
States to make decisions as regards the specifics of these mechanisms and does not impose
disproportionate costs.
The proposal imposes obligations on some information society services. However, these
obligations remain reasonable in view of the nature of the services covered, the significant
impact of these services on the online content market and the large amounts of copyright-
protected content stored by these services. The introduction of a related right for news
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publishers would improve legal certainty and their bargaining position, which is the pursued
objective. The proposal is proportionate as it only covers news publications and digital uses.
The transparency obligation contained in the proposal only aims at rebalancing contractual
relationships between creators and their contractual counterparts while respecting contractual
freedom.
•
Choice of the instrument
The proposal relates to, and in some instances modifies, existing Directives. It also leaves,
when appropriate and taking into accou8nthe aim to be achieved, margin of manoeuver for
Member States while ensuring that the objective of a functioning internal market is met. The
choice of a Directive is therefore adequate.
3.
RESULTS
OF
EX-POST
EVALUATIONS,
STAKEHOLDER
CONSULTATIONS AND IMPACT ASSESSMENTS
•
Ex-post evaluations/fitness checks of existing legislation
The Commission carried out a review of the existing copyright rules between 2013 and 2016
with the objective to “ensure that copyright and copyright-related practices stay fit for purpose
in the new digital context”15. Even if it started before the adoption of the Commission's Better
Regulation Agenda in May 201516, this review process was carried out in the spirit of the
Better Regulation guidelines. The review process highlighted, in particular, problems with the
implementation of certain exceptions and their lack of cross-border effect17 and pointed out to
difficulties in the use of copyright-protected content, notably in the digital and cross-border
context that have emerged in recent years.
•
Stakeholder consultations
Several public consultations were held by the Commission. The consultation on the review of
the EU copyright rules carried out between 5 December 2013 and 5 March 201418 provided
the Commission with an overview of stakeholders' views on the review of the EU copyright
rules, including on exceptions and limitations and on the remuneration of authors and
performers. The public consultation carried out between 24 September 2015 and 6 January
2016 on the regulatory environment for platforms, online intermediaries, data and cloud
computing and the collaborative economy19 provided evidence and views from all
stakeholders on the role of intermediaries in the online distribution of works and other
subject-matter. Finally, a public consultation was held between the 23 March 2016 and 15
June 2016 on the role of publishers in the copyright value chain and on the 'panorama
exception'. This consultation allowed collecting views notably on the possible introduction in
EU law of a new related right for publishers.
In addition, between 2014 and 2016, the Commission had discussions with the relevant
stakeholders on the different topics addressed by the proposal.
15
COM(2012) 789 final.
16
COM(2015) 215 final.
17
Covering, respectively, the exception on illustration for teaching and research (as it relates to text and
data mining) and on specific acts of reproduction (as it relates to preservation).
18
Reports on the responses to the consultation available on:
http://ec.europa.eu/internal market/consultations/2013/copyright-rules/docs/contributions/consultation-
report en.pdf
19
First results available on https://ec.europa.eu/digital-single-market/news/first-brief-results-public-
consultation-regulatory-environment-platforms-online-intermediaries
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•
Collection and use of expertise
Legal20 and economic21 studies have been conducted on the application of Directive
2001/29/EC, on the economic impacts of adapting some exceptions and limitations, on the
legal framework of text and data mining and on the remuneration of authors and performers.
•
Impact assessment
An impact assessment was carried out for this proposal22. On 22 July 2016, the Regulatory
Scrutiny Board gave a positive opinion on the understanding that the impact assessment will
be further improved.23 The final Impact Assessment takes into account comments contained in
that opinion.
The Impact Assessment examines the baseline scenarios, policy options and their impacts for
eight topics regrouped under three chapters, namely (i) ensuring wider access to content, (ii)
adapting exceptions to digital and cross-border environment and (iii) achieving a well-
functioning marketplace for copyright. The impact on the different stakeholders was analysed
for each policy option; taking in particular into account the predominance of SMEs in the
creative industries the analysis concludes that introducing a special regime would not be
appropriate as it would defeat the purpose of the intervention. The policy options of each
topic are shortly presented below.
Access and availability of audiovisual works on video-on-demand platforms: A non-
legislative option (Option 1), consisting in the organisation of a stakeholder dialogue on
licensing issues, was not retained as it was deemed insufficient to address individual cases of
blockages. The chosen option (Option 2) combines the organisation of a stakeholder dialogue
with the obligation for Member States to set up a negotiation mechanism.
Out-of-commerce works: Option 1 required Member States to put in place legal mechanisms,
with cross-border effect, to facilitate licensing agreements for out-of-commerce books and
learned journals and to organise a stakeholder dialogue at national level to facilitate the
implementation of that mechanism. Option 2 went further since it applied to all types of out-
of-commerce works. This extension was deemed necessary to address the licensing of out-of-
commerce works in all sectors. Option 2 was therefore chosen.
20
Study on the application of Directive 2001/29/EC on copyright and related rights in the information
society: http://ec.europa.eu/internal market/copyright/studies/index en htm; Study on the legal
framework
of
text
and
data
mining:
http://ec.europa.eu/internal market/copyright/docs/studies/1403 study2 en.pdf; Study on the making
available right and its relationship with the reproduction right in cross-border digital transmissions:
http://ec.europa.eu/internal market/copyright/docs/studies/141219-study en.pdf;
Study
on
the
remuneration of authors and performers for the use of their works and the fixation of their
performances:
https://ec.europa.eu/digital-single-market/en/news/commission-gathers-evidence-
remuneration-authors-and-performers-use-their-works-and-fixations; Study on the remuneration of
authors of books and scientific journals, translators, journalists and visual artists for the use of their
works: [hyperlink to be included – publication pending]
21
Study “Assessing the economic impacts of adapting certain limitations and exceptions to copyright and
related rights in the EU” : http://ec.europa.eu/internal market/copyright/docs/studies/131001-
study en.pdf and “Assessing the economic impacts of adapting certain limitations and exceptions to
copyright
and
related
rights
in
the
EU – Analysis
of
specific
policy
options”:
http://ec.europa.eu/internal market/copyright/docs/studies/140623-limitations-economic-impacts-
study en.pdf
22
Add link to IA and Executive Summary.
23
Add link to RSB opinion.
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Use of works and other subject-matter in digital and cross-border teaching activities: Option 1
consisted in providing guidance to Member States on the application of the existing teaching
exception in the digital environment and the organisation of a stakeholder dialogue. This was
considered not sufficient to ensure legal certainty, in particular as regards cross-border uses.
Option 2 required the introduction of a mandatory exception with a cross-border effect
covering digital and online uses. Option 3 is similar to Option 2 but leaves some flexibility to
Member States that can decide to apply the exception depending on the availability of
licences. This option was deemed to be the most proportionate one.
Text and data mining: Option 1 consisted in self-regulation initiatives from the industry.
Other options consisted in the introduction of a mandatory exception covering text and data
mining. In Option 2, the exception only covered uses pursuing a non-commercial scientific
research purpose. Option 3 allowed uses for commercial scientific research purpose but
limited the benefit of the exception to some beneficiaries. Option 4 went further as it did not
restrict beneficiaries. Option 3 was deemed to be the most proportionate one.
Preservation of cultural heritage: Option 1 consisted in the provision of guidance to Member
States on the implementation of the exception on specific acts of reproduction for preservation
purposes. This Option was rejected as it was deemed insufficient to achieve legal certainty in
the field. Option 2, consisting in a mandatory exception for preservation purposes by cultural
heritage institutions, was chosen.
Use of copyright-protected content by information society services storing and giving access
to large amounts of works and other subject-matter uploaded by their users: Option 1
consisted in the organisation of a stakeholder dialogue. This approach was rejected as it would
have a limited impact on the possibility for rightholders to determine the conditions of use of
their works and other subject-matter. The chosen option (Option 2) goes further and provides
for an obligation for certain service providers to put in place appropriate technologies and
fosters the conclusion of agreements with rightholders.
Rights in publications: Option 1 consisted in the organisation of a stakeholder dialogue to find
solutions for the dissemination of news publishers' content. This option was deemed
insufficient to ensure legal certainty across the EU. Option 2 consisted in the introduction of a
related right covering online uses of news publications. In addition to this, Option 3 leaves the
option for Member States to enable publishers, to which rights have been transferred by an
author, to claim a share in the compensation for uses under an exception. This last option was
the one retained as it addressed all relevant problems.
Fair remuneration in contracts of authors and performers: Option 1 consisted in providing a
recommendation to Member States and organising a stakeholder dialogue. This option was
rejected since it would not be efficient enough. Option 2 foresaw the introduction of
transparency obligations on the contractual counterparts of creators. On top of that, Option 3
proposed the introduction of a contract adjustment mechanism and a dispute resolution
mechanism. This option was the one retained since Option 2 would not have provided
enforcement means to creators to support the transparency obligation.
•
Regulatory fitness and simplification
For the uses covered by the exceptions, the proposal will allow educational establishments,
public-interest research institutions and cultural heritage institutions to reduce transaction
costs. This reduction of transaction costs does not necessarily mean that rightholders would
suffer a loss of income or licensing revenues: the scope and conditions of the exceptions
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ensure that rightholders would suffer minimal harm. The impact on SMEs in these fields (in
particular scientific and educational publishers) and on their business models should therefore
be limited.
Mechanisms aiming to improve licensing practices are likely to reduce transaction costs and
increase licensing revenues for rightholders. SMEs in the fields (producers, distributors,
publishers, etc.) would be positively affected. Other stakeholders, such as VoD platforms,
would also be positively affected. The proposal also includes several measures (transparency
obligation on rightholders' counterparts, introduction of a new right for news publishers and
obligation on some online services) that would improve the bargaining position of
rightholders and the control they have on the use of their works and other subject-matter. It is
expected to have a positive impact on rightholders' revenues.
The proposal includes new obligations on some online services and on those to which authors
and performers transfer their rights. These obligations may impose additional costs. However,
the proposal ensures that the costs will remain proportionate and that, when necessary, some
actors would not be subject to the obligation. For instance, the transparency obligation will
not apply when the administrative costs it implies are disproportionate in view of the
generated revenues. As for the obligation on online services, it only applies to information
society services storing and giving access to large amounts of copyright-protected content
uploaded by their users.
The proposal foresees the obligation for Member States to implement negotiation and dispute
resolution mechanisms. This implies compliance costs for Member States. However, they
could rely in most cases on existing structures, which would limit the costs. The teaching
exception can also entail some costs for Member States linked to the measures ensuring the
availability and visibility of licences for educational establishments.
New technological developments have been carefully examined. The proposal includes
several exceptions that aim at facilitating the use of copyright-protected content via new
technologies. This proposal also includes measures to facilitate access to content, including
via digital networks. Finally, it ensures a balanced bargaining position between all actors in
the digital environment.
•
Fundamental rights
By improving the bargaining position of authors and performers and the control rightholders
have on the use of their copyright-protected content, the proposal will have a positive impact
on copyright as a property right, protected under Article 17 of the Charter of Fundamental
Rights of the European Union (‘the Charter’). This positive impact will be reinforced by the
measures to improve licensing practices, and ultimately rightholders' revenues. New
exceptions that reduce to some extent the rightholders' monopoly are justified by other public
interest objectives. These exceptions are likely to have a positive impact on the right to
education and on cultural diversity. Finally, the Directive has a limited impact on the freedom
to conduct a business and on the freedom of expression and information, as recognised
respectively by Articles 16 and 11 of the Charter, due to the mitigation measures put in place
and a balanced approach to the obligations set on the relevant stakeholders.
4.
BUDGETARY IMPLICATIONS
The proposal has no impact on the European Union budget.
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5.
OTHER ELEMENTS
•
Implementation plans and monitoring, evaluation and reporting arrangements
In accordance with Article 20, the Commission shall carry out an evaluation of the Directive
no sooner than [five] years after the date of [transposition].
•
Explanatory documents
In compliance with recital 49 of the proposal, Member States will notify the Commission of
their transposition measures with explanatory documents. This is necessary given the
complexity of rules laid down by the proposal and the importance to keep a harmonised
approach of rules applicable to the digital and cross-border environment.
•
Detailed explanation of the specific provisions of the proposal
The first title contains general provisions which (i) specify the subject-matter and the scope of
the Directive and (ii) provide definitions that will need to be interpreted in a uniform manner
in the Union.
The second title concerns measures to adapt exceptions and limitations to the digital and
cross-border environment. This title includes three articles which require Member States to
provide for mandatory exceptions or a limitation allowing (i) text and data mining carried out
by research organisations for the purposes of scientific research (Article 3); (ii) digital uses of
works and other subject-matter for the sole purpose of illustration for teaching (Article 4) and
(iii) cultural heritage institutions to make copies of works and other subject-matter that are
permanently in their collections to the extent necessary for their preservation (Article 5).
Article 6 clarifies the link between the Directive and Directives 96/9/EC and 2001/29/EC.
The third title concerns measures to improve licensing practices and ensure wider access to
content. Article 7 requires Member States to put in place a legal mechanism to facilitate
licensing agreements of out-of-commerce works and other subject-matter. Article 8
guarantees the cross-border effect of such licensing agreements. Article 9 requires Member
States to put in place a stakeholder dialogue on issues relating to Articles 7 and 8. Article 10
creates an obligation for Member States to put in place a negotiation mechanism to facilitate
negotiations on the online exploitation of audiovisual works.
The fourth title concerns measures to achieve a well-functioning marketplace for copyright.
Articles 11 and 12(i) extend the rights provided for in Articles 2 and 3(2) of Directive
2001/29/EC to publishers of news publications for the online use of their publications and (ii)
provide for the option for Member States to provide all publishers with the possibility to claim
a share in the compensation for uses made under an exception. Article 13 creates an
obligation on information society services storing and giving access to large amounts of
works and other subject-matter uploaded by their users to take appropriate and proportionate
measures to ensure the functioning of agreements concluded with rightholders and to prevent
the availability on their services of content not covered by an agreement. Article 14 requires
Member States to include transparency obligations to the benefit of authors and performers.
Article 15 requires Member States to establish a contract adjustment mechanism, in support of
the obligation provided for in Article 14. Article 16 requires Member States to set up a dispute
resolution mechanism for issues arising from the application of Articles 14 and 15.
The fifth title contains final provisions on the application in time, transitional provisions, the
protection of personal data, the implementation, the evaluation, the expert group and the entry
into force.
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Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on copyright in the Digital Single Market
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 114 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee24,
Having regard to the opinion of the Committee of the Regions25,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1)
[please remember to take these titles out in the final version]The Treaty provides for
the establishment of an internal market and the institution of a system ensuring that
competition in the internal market is not distorted. Harmonisation of the laws of the
Member States on copyright and related rights should contribute further to the
achievement of those objectives.
(2)
[The directives which have been adopted in the area of copyright and related rights
provide for a high level of protection for right holders and create a framework wherein
the exploitation of works and other protected subject-matter can take place. This
Directive provides a harmonised legal framework which contributes to the good
functioning of the internal market and to the Union's objective of respecting and
promoting cultural diversity while at the same time bringing the European common
cultural heritage to the fore.
(3)
[General – Background and aim – December communication] Rapid technological
developments continue to transform the way works and other subject-matter are
created, produced, distributed and exploited. New business models and new actors
continue to emerge. Althought the objectives and the principles laid down by the
Union copyright framework are sound there is still some legal uncertainty, for both
rightholders and users, mainly as regards cross-border uses of works and other subject-
matter in the digital environment. Therefore, in those areas, it is necessary to adapt
and supplement the current Union copyright framework. There should be rules to
adapt certain exceptions and limitations to digital and cross-border environments as
well as measures to facilitate certain licensing practices as regards the dissemination of
24
OJ C […], […], p. […].
25
OJ C […], […], p. […].
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out-of commerce works and the online availability of audiovisual works on video-on-
demand platforms with a view to ensuring wider access to content. In order to achieve
a well-functioning marketplace for copyright, tthere should also be rules on rights in
publications, on the use of works and other subject-matter by online services storing
and giving access to user uploaded content and on the transparency of authors' and
performers' contracts.
(4)
[General – Current legal background – Not affected] This Directive is based upon,
and complements, the rules laid down in the Directives currently in force in this area,
in particular Directive 96/9/EC of the European Parliament and of the Council27,
Directive 2001/29/EC of the European Parliament and of the Council28, Directive
2006/115/EC of the European Parliament and of the Council29, Directive 2009/24/EC
of the European Parliament and of the Council30, Directive 2012/28/EU of the
European Parliament and of the Council31 and Directive 2014/26/EU of the European
Parliament and of the Council32.
(5)
[Exceptions – Legal uncertainty as regards new uses – Need for mandatory
exceptions] In the fields of research, education and preservation of cultural heritage,
digital technologies permit new types of uses that are not clearly covered by the
current EU rules on exceptions and limitations. In addition, the optional nature of
exceptions and limitations provided for in Directives 2001/29/EC, 96/9/EC and
2009/24/EC in these fields may negatively impact the functioning of the internal
market. This is particularly relevant as regards cross-border uses, which are becoming
increasingly important in the digital environment. Therefore, tThe existing exceptions
and limitations in Union law that are relevant for scientific research, teaching and
preservation of cultural heritage should be reassessed in the light of new uses not
covered by Union legislation. Namely new mandatory exceptions or limitations for
uses of text and data mining technologies in the field of scientific research, illustration
for teaching in the online environment and for preservation of cultural heritage should
be introduced. For uses not covered by the exceptions or the limitation provided in this
Directive, the exceptions and limitations existing in Union law will continue to apply.
Directives 96/9/EC of the European Parliament and of the Council33 and 2001/29/EC
should also be adapted.
(6)
[Exceptions – Fair balance of rights] The exceptions and the limitations set out in
this Directive seek to achieve a fair balance between the rights and interests of authors
and other rightholders on the one hand, and of users on the other. They can be applied
only in certain special cases which do not conflict with the normal exploitation of the
works or other subject-matter and do not unreasonably prejudice
the legitimate interests of the rightholders.
(7)
[TDM – Rationale] New technologies have made the automated computational
analysis of information in digital form, such as text, sounds, images or data, generally
33
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
protection of databases (OJ L 77, 27.3.1996, p. 20).
33
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
protection of databases (OJ L 77, 27.3.1996, p. 20).
33
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
protection of databases (OJ L 77, 27.3.1996, p. 20).
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known as text and data mining faster. Those technologies allow researchers to process
large amounts of information to gain new knowledge and discover new trends.
However there is still, in the Union, research organisations such as universities and
research institutes are confronted with legal uncertainty as to to extend to which text
and data mining of content can be performed without impinging on copyright and
database rights That legal uncertainty should be addressed by providing for a
mandatory exception to the right of reproduction and also to the right to prevent
extraction from a database in order to allow data mining to be carried out even if it
requires the reproduction of works, or other subject matter, or of parts thereof; or the
extraction of the whole or a substantial part of the contents of a database protected by
the sui generis right. Text and data mining may also be carried out in relation to mere
facts data not protexcted by compyright an din such instacnes no authorisation would
be required. Research organisations should also benefit from that exception when they
engage in public-private partnerships.
(8)
[
(9)
[TDM] In certain instances, text and data mining may involve acts protected by
copyright and/or by the sui generis database right, notably the reproduction of works
or other subject-matter and/or the extraction of contents from a database. Where there
is no exception or limitation which applies, an authorisation to undertake such acts
would be required from rightholders. Text and data mining may also be carried out in
relation to mere facts or data which are not protected by copyright and in such
instances no authorisation would be required.This legal uncertainty should be
addressed by providing for a mandatory exception to the right of reproduction and also
to the right to prevent extraction from a database. Such an exception would seek to
ensure that text and data mining can be carried out even if it requires the reproduction
of works, or other subject matter, or of parts thereof; or the extraction of the whole or a
substantial part of the contents of a database protected by the sui generis right. The
new exception should be without prejudice[stands to reason] to the existing mandatory
exception on temporary acts of reproduction laid down in Article 5(1) of Directive
2001/29, which should continue to apply to text and data mining techniques which do
not involve the making of copies going beyond the scope of that exception.
(10)
[TDM – Scientific research] The term ‘scientific research’ within the meaning of this
Directive should cover both the natural sciences and the human sciences
(11)
[TDM – Beneficiaries] Research organisations across the Union encompass a wide
variety of entities, irrespective of their legal status or way of financing whose primary
goal is to independently conduct scientific research and to widely disseminate the
results of such research or together with the provision of educational services. Due to
the diversity of such entities, it is important to have a common understanding of the
beneficiaries of the exception. Despite different legal forms and structures, research
organisations across Member States generally have in common that they act either on
a not for profit basis or in the context of a public-interest mission recognised by the
State. Such a public-interest mission may, for example, be reflected through public
funding or through provisions in national laws or public contracts. At the same time,
However, organisations upon which commercial undertakings have a decisive
influence, notably because of structural situations such as their quality of shareholders
or members, which might give them preferential access to the results of the research
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should not be considered research organisations for the purposes of this Directive. To
be adapted in line with LS comments in Note to new State Aid approach.
(12)
[TDM – Technical safeguards] In view of a potentially high number of access
requests to and downloads of their works or other subject-matter, rightholders should
be allowed to apply measures where there is risk that the security and integrity of the
system or databases where the works or other subject-matter are hosted would be
jeopardised. Those measures should not exceed what is necessary to pursue the
objective of ensuring the security and integrity of the system and should not
undermine the effective application of the exception.
(13)
[TDM] In view of its nature and scope, thetext and data mining exception results in
negligible prejudice to the rightholders, therefore compensation should not be
envisaged.
(14)
[Teaching – Rationale for introducing a mandatory exception for digital uses] While existing legislation already provides for an exception or limitation to the rights
of reproduction, communication to the public and making available to the public, as
well as database extraction rights for the sole purpose of illustration for teaching, In
addition, Articles 6(2)(b) and 9(b) of Directive 96/9/EC permit the use of a database
and the extraction or re-utilization of a substantial part of its contents for the purpose
of illustration for teaching. The scope of these exceptions or limitations as they apply
to digital uses is unclear. In addition, there is a lack of clarity as to whether those
exceptions or limitations would apply where teaching is provided online and thereby at
a distance. Moreover, the existing framework does not provide for a cross-border
effect. That can hamper the development of digitally-supported teaching activities and
distance learning. Therefore, the introduction of a new mandatory exception or
limitation is necessary to ensure that educational establishments benefit from full legal
certainty when using works or other subject-matter in digital teaching activities,
including online and cross-border.
(15)
[Teaching – Beneficiaries] Digital tools and resources are increasingly used at all
education levels, in particular to improve and enrich the learning experience, therefore
the exception or limitation provided for in this Directive should benefit all educational
establishments in primary, secondary, vocational and higher education to the extent
they pursue their educational activity for a non-commercial purpose.
(16)
[Teaching – Illustration for teaching] The use of the works or other subject-matter
under the exception or limitation should be only in the context of teaching and
learning activities carried out under the responsibility of educational establishments,
including during examinations. The exception or limitation should cover both uses
through digital (see above comment) means in the classroom and online uses through
the educational establishment's secure electronic network, the access to which should
be protected, notably by authentication procedures. The exception or limitation should
be understood as covering the specific accessibility needs of persons with a disability
in the context of illustration for teaching.
(17)
[Teaching – Flexibility for MS] Whereas it is essential to harmonise the scope of the
new mandatory exception or limitation in relation to digital uses and cross-border
teaching activities, the modalities of implementation can differ from a Member State
to another, in order for them not to hamper the effective application of the exception or
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limitation or cross-border uses. That should allow Member States to build on the
existing arrangements concluded at national level. In particular, Member States could
decide to subject the application of the exception or limitation, fully or partially, to the
availability of adequate licences, covering the same uses as those allowed under the
exception. This mechanism would, for example, allow giving precedence to licences
for materials which are primarily intended for the educational market. In order to
avoid that such mechanism results in legal uncertainty or administrative burden for
educational establishments, Member States adopting this approach should take
concrete measures to ensure that licensing schemes allowing digital uses of works or
other subject-matter for the purpose of illustration for teaching are easily available and
that educational establishments are aware of the existence of such licensing schemes
(18)
(19)
[Preservation – Rationale for intervention] Cultural heritage institutions are engaged
in the preservation of their collections for future generations. Digital technology offers
new ways to preserve the heritage contained in those but they also create new
challenges. An act of preservation would require a reproduction of a work or other
subject-matter in the collection of a cultural heritage institution and consequently the
authorisation of the relevant rightholders. In view of these new challenges, it is
necessary to adapt the current legal framework by providing a mandatory exception to
the right of reproduction in order to allow those acts of preservation.
(20)
[Preservation – Single market rationale] Different approaches in the Member States
for acts of preservation by cultural heritage institutions hamper cross-border
cooperation and the sharing of best practice including the means of preservation by
cultural heritage institutions in the internal market, leading to an infficient use of
resources.
(21)
[Preservation – Better qualification of the exception / what we intend for
preservation] Member States should therefore be required to provide for an exception
to permit cultural heritage institutions to reproduce works and other subject-matter
permanently in their collections when that reproduction is solely for preservation
purposes in situations of technological obsolescence or the degradation of the original.
Such an exception should allow for the making of copies by the appropriate
preservation tool, means or technology, in the required quantity and at any point in the
life of a work or other subject-matter to the extent required in order to produce a copy
for preservation purposes only.
(22)
[Preservation – Permanent collection] For the purposes of this Directive, works and
other subject-matter should be considered to be permanently in the collection of a
cultural heritage institution when copies are owned or permanently held by the cultural
heritage institution, for example as a result of a transfer of ownership or licence
agreements.
(23)
[OoC – Main rationale for intervention] Cultural heritage institutions should benefit
from a clear framework for the digitisation and dissemination, including across
borders, of out-of-commerce works or other subject-matter. In view that obtaining the
prior consent of the right holders of out-of-commerce works might not always be
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possible, there should be measures to facilitate the licensing of rights in out-of-
commerce works that are in the collections of cultural heritage institutions and thereby
to allow the conclusion of agreements with cross-border effect in the internal market.
(24)
[OoC – Mechanism, flexibility for MS in type of technique to be used] Member
States should, within the framework provided for in this Directive, have flexibility in
choosing the specific type of mechanism allowing for licences for out-of-commerce
works to extend to the rights of rightholders that are not represented by the collective
management organisation, in accordance to their legal traditions, practices or
circumstances. Such mechanisms can include extended collective licensing and
presumptions of representation.
(25)
[OoC – Importance of compliance with CRM Directive and additional measures] For the purpose of those licensing mechanisms, a rigorous and well-functioning
collective management system is important. That system should include in particular
rules of good governance, transparency and reporting, as well as the regular, diligent
and accurate distribution and payment of amounts due to individual right holders, as
provided for by Directive 2014/26/EU of the European Parliament and of the
Council37. [no need to state what the other directive covers] Additional appropriate
safeguards should be available for all rightholders, who should be given the
opportunity to exclude the application of such mechanisms to their works or other
subject-matter. Conditions attached to those mechanisms should not affect their
practical relevance for cultural heritage institutions.
(26)
[OoC – Recognition of specificities of different categories of works] Given the
variety of works and other subject-matter in the collections of cultural heritage
institutions, it is important that mechanisms are available and can be used in practice
for different types of works and other subject-matter, including photographs, sound
recordings and audiovisual works. In order to reflect the specificities of different
categories of works and other subject-matter as regards modes of publication and
distribution, it is appropriate that Member States are allowed to establish criteria at
national level, in consultation with rightholders and users, for works or other subject-
matter to qualify as out-of-commerce in that country.
(27)
[OoC – Third countries] For reasons of international comity, the licensing
mechanisms for the digitisation and dissemination of out-of-commerce works
provided for in this Directive should not apply to works or other subject-matter that
are first published or, in the absence of publication, first broadcast in a third country
or, in the case of cinematographic or audiovisual works, to works the producer of
which has his headquarters or habitual residence in a third country.
Those mechanisms should also not apply to works or other subject-matter of third
country nationals except when they are first published or, in the absence of
publication, first broadcast in the territory of a Member State or, in the case of
cinematographic or audiovisual works, to works of which producer's headquarters or
habitual residence is in a Member State.
(28)
[OoC – Possibility to recoup costs] As mass digitisation projects can entail
significant investments by cultural heritage institutions, any licences granted under the
mechanisms provided for in this Directive should not prevent them from generating
37
Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective
management of copyright and related rights and multi-territorial licensing of rights in musical works for
online use in the internal market (OJ L 84, 20.3.2014, p. 72.)
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reasonable revenues in order to cover the costs of the licence and the costs of digitising
and disseminating the works and other subject-matter covered by the licence.
(29)
[OoC – EUIPO register] Information regarding the future and ongoing by cultural
heritage institutions on the basis of the licensing mechanisms provided for in this
Directive and the arrangements in place for all rightholders to exclude the application
of licences to their works or other subject-matter should be adequately publicised. This
is particularly important when uses take place across borders in the internal market. In
order to make information about the use of out-of-commerce works and other subject-
matter by cultural heritage institutions publicly accessible, it is appropriate to make
provision for the creation of a single publicly accessible online portal for the Union
for a reasonable period of time before the cross-border use takes place. Under
Regulation (EU) No 386/2012 of the European Parliament and of the Council38, the
European Union Intellectual Property Office is entrusted with certain tasks and
activities, financed by making use of its own budgetary measures, aiming at
facilitating and supporting the activities of national authorities, the private sector and
Union institutions in the fight against, including the prevention of, infringement of
intellectual property rights. It is therefore appropriate to rely on that Office to establish
and manage the European portal making such information available.
(30)
[VoD – Background] However, agreements on the online exploitation of on-demand
servicescan face difficulties related to the licensing of rightsin the form of lack of
interest of the holder of the rights for a given territory in the online exploitation of the
work [elsewhere?] or issues linked to the windows of exploitation[is this clear
enough?].
(31)
[VoD – Room of manoeuver for MS] To facilitate the licensing of rights in
audiovisual works to video-on-demand platforms, this Directive requires Member
States to set up a negotiation mechanism allowingparties willing to conclude an
agreement to rely on the assistance of an impartial body. The participation in the
negotiation mechanism should be voluntary. The body should meet with the parties
and help with the negotiations by providing professional and external advice. Against
that background, Member States should decide on the conditions of the functioning of
the negotiation mechanism, including the timing and duration of the assistance to
negotiations and the bearing of the costs. Member States should ensure that
administrative and financial burdens remain proportionate to guarantee the efficiency
of the negotiation forum.
(32)
[Publishers] A free and pluralist press is essential to ensure quality journalism and
citizens' access to information. It provides a fundamental contribution to public debate
and the proper functioning of a democratic society. In the transition from print to
digital, publishers of news publications are facing problems in licensing the online use
of their news publications and recouping their investments. In the absence of
recognition of publishers of news publications as rightholders, licensing in the digital
environment and online enforcement is often complex and inefficient.
(33)
[Publishers] In the transition from print to digital, publishers of news publications are
facing problems in licensing the online use of their news publications and recouping
38
Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on
entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with tasks
related to the enforcement of intellectual property rights, including the assembling of public and
private-sector representatives as a European Observatory on Infringements of Intellectual Property
Rights (OJ L 129, 16.5.2012, p. 1).
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their investments. The organisational and financial contribution of publishers in
producing news publications needs to be recognised and further encouraged to ensure
the sustainability of the publishing industry. It is therefore necessary to provide a
harmonised legal protection for news publications in respect of online uses within the
Union. Such protection should be effectively guaranteed through the introduction, in
Union law, of rights related to copyright for the reproduction and making available to
the public of news publications in respect of online uses.
(34)
[Publishers] For the purposes of this Directive, it is necessary to define the concept of
news publication, in particular digital online publications, in a way that embraces only
journalistic publications, published by a service provider, periodically or regularly
updated in any media, for the purpose of informing the general public. Such
publications would include, for instance, daily newspapers, weekly magazines and
news websites. Periodical publications which are published for scientific or academic
purposes, such as scientific journals, should not (why not scientific?) be covered by
the protection granted to news publications under this Directive. The protection should
not extend to news of the day as such or to miscellaneous facts having the character of
mere items of press information which do not constitute the expression of the
intellectual creation of their authors.
(35)
[Publishers] The rights granted to the publishers of news publications under this
Directive should have the same scope as the rights of reproduction and making
available to the public provided for in Directive 2001/29/EC of the European
Parliament and of the Council39, insofar as online uses are concerned. They should
also be subject to the same provisions on exceptions and limitations as those
applicable to the rights provided for in Directive 2001/29/EC including the exception
on quotation for purposes such as criticism or review laid down in Article 5(3)(d) of
that Directive.
(36)
[Publishers] The protection granted to publishers of news publications under this
Directive should not affect the rights of the authors and other rightholders in the works
and other subject-matter incorporated therein, including as regards the extent to which
authors and other rightholders can exploit their works or other subject-matter
independently from the news publication in which they are incorporated. Therefore,
publishers of news publications should not be able to bring up the protection granted
to them against authors and other rightholders. This is without prejudice to contractual
arrangements concluded between the publishers of news publications, on the one side,
and authors and other rightholders, on the other side.
(37)
[Publishers – Reprobel] Publishers, including those of news publications, books or
scientific publications, often operate on the basis of the transfer of authors' rights by
means of contractual agreements or statutory provisions. In order to take account of
this situation,
.
(38)
[Value Gap – Rationale] The online content marketplace has become complex.
Online services providing access to copyright protected content uploaded by their
users without the authorisation of the right holders have flourished and have become
main sources of access to content online affecting the rightholders' possibilities of
determining whether, and under which conditions, their work and other subject-matter
are used as well of receiving appropriate remuneration for it.
39
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167,
22.6.2001, p. 10).
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(39)
[Value Gap] Where online service providers store and provide access to the public to
copyright protected works or other subject-matter uploaded by their users and go
beyond the mere provision of physical facilities thereby performing an act of
communication to the public, they are obliged to conclude licensing agreements with
rightholders, unless they are eligible for the liability exemption provided in Article 14
of Directive 2000/31/EC of the European Parliament and of the Council40
In view of the possible obligation to conclude a licensing agreement, online service
providers storing and providing access to the public to large amounts of copyright
protected works or other subject-matter uploaded by their users should take
appropriate and proportionate measures to ensure protection of works or other subject-
matter, such as implementing effective technologies and a high level of transparency
towards rights holders, including when, in accordance with Article 15 of Directive
2000/31/EC, the online service providers do not have a general obligation to monitor
the information which they transmit or store or to actively seek facts or circumstances
indicating illegal activity.
(40)
[Value Gap] Collaboration between online service providers storing and providing
access to the public to large amounts of copyright protected works or other subject-
matter uploaded by their users and rightholders is essential for the functioning of the
technologies. While the rightholders should provide the necessary data to allow the
services to identify their content, the services have to be transparent towards
rightholders with regard to the deployed technologies, to allow them to assess the
appropriateness of the technologies. The services should in particular provide
rightholders with information on the type of technologies used, the way they are
operated and their success rate for the identification of rightholders' content. Those
technologies should also allow rightholders to get information from the services on the
use of their content covered by an agreement.
(41)
[Remuneration – Rationale for intervention] Certain rightholders such as authors
and performers need information to assess the economic value of their rights which are
harmonised under Union law. This is especially the case where such rightholders grant
a licence or a transfer of rights in return for remuneration. As authors and performers
tend to be in a weaker contractual position when they grant licences or transfer their
rights, they need information to assess the continued economic value of their rights,
compared to the remuneration received for their licence or transfer, but they often face
a lack of transparency. Therefore, the sharing of adequate information by their
contractual counterparts or their successors in title is important for the transparency
and balance in the system that governs the remuneration of authors and performers.
(42)
[Remuneration – Transparency obligations] When implementing transparency
obligations, the specificities of different content sectors and of the rights of the authors
and performers in each sector should be considered. Member States should consult all
41
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the
protection of individuals with regard to the processing of personal data and on the free movement of
such data (OJ L 281, 23.11.1995, p. 31). This Directive is repealed with effect from 25 May 2018 and
shall be replaced by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27
April 2016 on the protection of natural persons with regard to the processing of personal data and on the
free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
(OJ L 119, 4.5.2016, p. 1). [
please replace the reference to Directive 95/46/EC by reference to
Regulation (EU) 2016/679 if the transposition date falls after 25 May 2018 .]
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relevant stakeholders as that should help determine sector-specific requirements.
Collective bargaining should be considered as an option to reach an agreement
between the relevant stakeholders regarding transparency. To enable the adaptation of
current reporting practices to the transparency obligations, a transitional period should
be provided for. The transparency obligations do not need to apply to agreements
concluded with collective management organisations as those are already subject to
transparency obligations under Directive 2014/26/EU.
(43)
[Remuneration – Contract adjustment mechanism] Certain contracts for the
exploitation of rights harmonised at Union level are of long duration offering few
possibilities for authors and performers to renegotiate them with their contractual
counterparts or their successors in title. Therefore, without prejudice to the law
applicable to contracts in Member States, there should be a contract adjustment
mechanism for cases where the remuneration agreed under a licence of rights is
disproportionately low compared to the revenues and the benefits derived from the
exploitation of the work or the fixation of the performance, including in light of the
transparency ensured by this Directive. Where the parties do not agree on the
adjustment of the remuneration, the author or performer should be entitled to bring a
claim before a court or other competent authority.
(44)
[Remuneration – Dispute resolution mechanism] Authors and performers are often
reluctant to enforce their rights against their contractual partners before a court or
tribunal. Member States should therefore provide for an alternative dispute resolution
procedure that addresses claims related to obligations of transparency and the contract
adjustment mechanism.
(45)
[General – Proportionality] The objectives of this Directive, namely the
modernisation of certain aspects of the Union copyright framework to take account of
technological developments and new channels of distribution of protected content in
the internal market, cannot be sufficiently achieved by Member States but can rather,
by reason of their scale, effects and cross-border dimension, be better achieved at
Union level. Therefore, the Union may adopt measures, in accordance with the
principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In
accordance with the principle of proportionality, as set out in that Article, this
Directive does not go beyond what is necessary in order to achieve those objectives.
(46)
[no need to state]
[General – Data protection] Any processing of personal data under this Directive should
respect fundamental rights, including the right to respect for private and family life and the
right to protection of personal data under Articles 7 and 8 of the Charter of Fundamental
Rights of the European Union and must be in compliance with Directive 95/46/EC of the
European Parliament and of the Council41 and Directive 2002/58/EC of the European
41
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the
protection of individuals with regard to the processing of personal data and on the free movement of
such data (OJ L 281, 23.11.1995, p. 31). This Directive is repealed with effect from 25 May 2018 and
shall be replaced by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27
April 2016 on the protection of natural persons with regard to the processing of personal data and on the
free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)
(OJ L 119, 4.5.2016, p. 1). [
please replace the reference to Directive 95/46/EC by reference to
Regulation (EU) 2016/679 if the transposition date falls after 25 May 2018 .]
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Parliament and of the Council42.
(47)
(48)
In accordance with the Joint Political Declaration of 28 September 2011 of Member
States and the Commission on explanatory documents43, Member States have
undertaken to accompany, in justified cases, the notification of their transposition
measures with one or more documents explaining the relationship between the
components of a directive and the corresponding parts of national transposition
instruments. With regard to this Directive, the legislator considers the transmission of
such documents to be justified.
(49)
In order to ensure a level playing field across the Union for [................] in the
application of the relevant rules, this Directive should enter into force as a matter of
urgency,
HAVE ADOPTED THIS DIRECTIVE:
42
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the
processing of personal data and the protection of privacy in the electronic communications sector
(Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37).
43
OJ C 369, 17.12.2011, p. 14.
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TITLE I
GENERAL PROVISIONS
Article 1
Subject matter and scope
1.
This Directive lays down rules which aim at further harmonising the Union law
applicable to copyright and related rights in the framework of the internal market,
taking into account, in particular, digital and cross-border uses of protected content.
It also lays down rules on exceptions and limitations, on the facilitation of licences as
well as rules aiming at ensuring a well-functioning marketplace for the exploitation
of works and other subject matter[.
2.
Except in the cases referred to in Article 6, this Directive shall leave intact and shall
in no way affect existing rules laid down in the Directives currently in force in this
area, in particular Directives 96/9/EC, 2001/29/EC, 2006/115/EC, 2009/24/EC,
2012/28/EU and 2014/26/EU.[this is not a definition of scope and should be deleted
or moved: aslo concerns comment in note on the (general) need to clarify relation to
other Instruments: better to have in a separate article "
relation to other
Instruments"to have separate. Rather, here scope should be defined by describing
what and whom does the directive concern.]
Article 2
Definitions
For the purposes of this Directive, the following definitions shall apply:
(1)
(2)
‘text and data mining’ means any automated analytical technique aiming to analyse
text and data in digital form in order to generate information such as patterns, trends
and correlations;
(3)
‘cultural heritage institution’ means a publicly accessible
library or museum,
an archive or a film or audio heritage institution;
(4)
‘news publication’ means a fixation
of a collection of literary works of a journalistic nature, even in
digital format, which may also comprise other works or subject-matter and
constitutes an individual item within a periodical or regularly-updated publication
under a single title, such as a newspaper or a magazine, having the purpose of
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providing information to the general public related to news or other general-interest
topics and published in any type of media under the initiative, responsibility and
control of a service provider.
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(b)
is accompanied, wherever possible, by the indication of the source, including
the author's name.
2.
Member States may provide
Member States availing themselves of the provision of the first subparagraph shall
take the necessary measures to ensure appropriate availability and visibility of the
licences authorising the acts described in paragraph 1 for educational
establishments.
3.
The use of works and other subject-matter for the sole purpose of illustration for
teaching through secure electronic networks undertaken in compliance with
this Article shall be deemed to occur solely in the Member
State where the educational establishment is established.
4.
Member States may provide for fair compensation
5.
The exception or limitation referred to in paragraph 1 shall be subject to the
provisions of Article 5(5) and the first, third and fifth subparagraphs of Article 6(4)
of Directive 2001/29/EC.
Article 5
Preservation of cultural heritage
1.
Member States shall provide for an exception to the reproduction rights provided for
in Article 2 of Directive 2001/29/EC and point (a) of Article 5 of Directive 96/9/EC,
the right for the maker of a database provided for in Article 7(1) of Directive
96/9/EC, exclusive rights of the rightholder provided for in Article 4(1)(a) of
Directive 2009/24/EC and the rights in publications provided for in Article 11(1) of
this Directive, in order for cultural heritage institutions to be able to make copies of
any works or other subject-matter that are permanently in their collections, in any
format or medium, for the sole purpose of the preservation of such works or other
subject-matter and to the extent necessary for such preservation.
2.
The exception referred to in paragraph 1 shall be subject to the provisions of Article
5(5) and the first, third and fifth subparagraphs of Article 6(4) of Directive
2001/29/EC.
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TITLE III
MEASURES TO IMPROVE LICENSING PRACTICES
AND ENSURE WIDER ACCESS TO CONTENT
CHAPTER 1
Out-of-commerce works
Article 7
Use of out-of-commerce works by cultural heritage institutions
1.
Member States shall provide that when a collective management organisation, on
behalf of its members, concludes a non-exclusive licence for non-commercial
purposes with a cultural heritage institution for the digitisation, distribution,
communication to the public or making available of out-of-commerce works or other
subject matter in the permanent collection of the institution, such a non-exclusive
licence may be extended or presumed to apply to right holders of the same category
as those covered by the licence who are not represented by the collective
management organisation, provided that:
(a)
the collective management organisation is, on the basis of mandates from right
holders, broadly representative of right holders in the category of works or
other subject matter and of the rights which are the subject of the licence;
(b)
equal treatment is guaranteed to all right holders in relation to the terms of the
licence;
(c)
all right holders may at any time object to their works or other subject matter
being deemed to be out-of-commerce and exclude the application of the licence
to their works or other subject matter.
2.
A work or other subject matter shall be deemed to be out-of-commerce when the
whole work or other subject matter, in all its translations, versions and
manifestations, is not available to the public through customary channels of
commerce and cannot be reasonably expected to become so.
3.
Member States shall provide, in sufficient time before the works or other subject-
matter are digitised, distributed, communicated to the public or made available, for
appropriate publicity measures regarding:
(a)
works or other subject-matter deemed to be out-of-commerce;
(b)
the non-exclusive licence, and in particular its application to unrepresented
rightholders; and
(c)
the right of rightholders to object, referred to in point (c) of paragraph 1;
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difficulties relating to the licensing of rights, they may rely on the assistance of an impartial
body with relevant experience. That body shall provide assistance with negotiation and help
reach agreements.
Not later than [date mentioned in Article 20(1)] Member States shall notify to the
Commission the body referred to in paragraph 1.
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TITLE IV
MEASURES TO ACHIEVE A WELL-FUNCTIONING
MARKETPLACE FOR COPYRIGHT
CHAPTER 1
Rights in publications
Article 11
Protection of news publications concerning online uses
1.
Member States shall provide publishers of news publications with the rights provided
for in Article 2 and Article 3(2)
2.
The rights referred to in paragraph 1 shall leave intact and shall in no way affect any
rights provided for in Union law to authors and other rightholders, in respect of the
works and other subject-matter incorporated in a news publication. Such rights may
not be invoked against those authors and other rightholders and, in particular, may
not deprive them of their right to exploit their works and other subject-matter
independently from the news publication in which they are incorporated.
3.
Articles 5 to 8 of Directive 2001/29/EC and Directive 2012/28/EU
shall apply
mutatis mutandis in
respect of the rights referred to in paragraph 1.
4.
The rights referred to in paragraph 1 shall expire 20
after the publication of the news publication. That time-limit shall
be calculated from the first day of January of the year following the year of
publication.
LS : relation to existing rights – exclusion of double banking?
Article 12
Claims to fair compensation
Member States shall
provide that where an author has transferred a right to a
publisher, such a transfer constitutes a sufficient legal basis for the publisher to claim a share
of the compensation for the uses of the work made under an exception or limitation to the
transferred right.
CHAPTER 2
Use of protected content by online services
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Article 15
Contract adjustment mechanism
Member States shall ensure that authors and performers are entitled to claim additional,
appropriate remuneration from the party with whom they entered into a contract for the
exploitation of the rights when the agreed remuneration is disproportionately low compared to
the subsequent revenues and benefits derived from the exploitation of the works or
performances.
Article 16
Dispute resolution mechanism
Member States shall provide that disputes concerning the transparency obligation under
Article 14 and the contract adjustment mechanism under Article 15 may be submitted to a
voluntary, alternative dispute resolution procedure.
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