This is an HTML version of an attachment to the Freedom of Information request 'Interservice Group on Copyright'.

Ref. Ares(2015)2222266 - 28/05/2015
Ref. Ares(2018)2688537 - 24/05/2018
Brussels, 28 May 2015 
Minutes of the second meeting of the Copyright review Inter-Service Steering 
Group. Brussels, 13 May 2015 
The Chair, 
 (SG.E2), recalled that since the first meeting of the 
Copyright review Inter-Service Steering Group (ISSG) took place the Communication on 
the DSM Strategy had been adopted. The DSM Strategy sets out concrete objectives in 
the area of copyright, in line with the conclusions of the DSM orientation debate in the 
 (DG CNECT) stated that the current version of the draft Impact 
Assessment (IA) did not identify the preferred policy options – as per the instructions of 
Commissioner Oettinger's Cabinet – on some of which a final decision remains to be 
taken. Moreover, no information had yet been included in the IA on problem 2 
('Deficiencies in the functioning of the online market place') as there is still ongoing 
analysis as regards the appropriate way to approach this issue. Generally, it should be 
kept in mind that the present exercise does not cover all copyright-related matters and 
does not preclude other initiatives on specific issues should the need arise in the future, 
for instance on the remuneration of authors (studies are currently being prepared) or as 
regards the review of the Satellite and Cable Directive announced in the DSM Strategy. 
The timing of the submission to the IA Board will depend on the timing of the decision 
on the preferred policy options. 
The ISSG reviewed the draft IA text section by section and made the following principal 
Problem definition 
DG JRC stressed their role as provider of empirical evidence on the one hand and their 
more direct stake in policy decisions regarding the application of copyright to scientific 
research. Overall, the economic perspective adopted in the document does not give 
enough prominence to the expected benefits for consumers and for the creative sector. 
The amount of creative content produced by a cultural sector is not necessarily connected 
to the level of the sector's revenues, as demonstrated by DG JRC for the music sector. 
DG GROW asked for a reference in the text to the e-Commerce Directive to be clarified 
(information society providers should be replaced by online intermediaries). 
DG EAC expressed satisfaction that most of their comments had been incorporated into 
the revised text. However, the problem definition related to text and data mining (TDM) 
could be further balanced, for instance by reflecting the efforts undertaken by publishers 
to provide solutions, even if there are yet to yield tangible results. Beyond copyright, 
other obstacles affecting the demand for TDM should also be mentioned e.g. lack of 

skills. Another way to improve legal certainty would be to clarify what is already 
possible or not possible under the current legal framework. 
DG JUST took note of the inclusion of an annex describing copyright-related issues not 
covered by this exercise but regretted that this information was not included in the main 
part of the document. More details should be provided about the reasons for not 
addressing them. 
DG GROW informed that an evaluation of the IPR Enforcement Directive would be 
launched in 2016, with a public consultation expected before the end of the year. One of 
the policy options concerning portability and cross-border access makes reference to an 
enforcement implication (policy option 4 – 'pan-European licences'). In the case that this 
policy option would be the preferred one, this aspect would need to be elaborated further. 
DG RTD emphasised the importance of TDM for researchers and underlined that the 
related problem definition was very well described. 
DG ECFIN made suggestions concerning the structure and readability of the document, 
in particular including TDM in the scope of pillar 3 (i.e. issues related to access to 
information) rather than addressing it separately. 
The SG called for consistency in the qualification of the size of the demand for cross-
border access to content (problem 1) across the IA (currently described as 'significant' in 
the problem description section while it is deemed to be 'marginal' in the assessment of 
impacts). The SG also called for the statement that the IA takes as a starting point that 
absolute territorial restrictions are the rule in the audiovisual sector to be substantiated. 
The description of the problem in the area of TDM could be strengthened, e.g. when it 
comes to demonstrating the potential underuse of TDM in Europe as compared with 
other parts of the world.  
 (DG CNECT) explained the choice made by DG CNECT to present 
TDM as a distinct problem: while problems 3 to 5 concern access to knowledge, problem 
6 (TDM) is more about the use of a particular technique to process knowledge that is 
already accessible. As regards problem 1, references to the demand for cross-border 
access to content and to possible absolute territorial restrictions in the audiovisual sector 
will be reviewed and appropriately nuanced. Efforts have been made to present the most 
balanced picture of the situation regarding TDM. The possibility to cover additional 
elements will be considered. In terms of available evidence, caution is required in using 
certain studies or data which have been challenged by stakeholders. 
 (SG) indicated that the assessment of impacts should be moved to 
the main part of the document and not presented as annexes. In principle, the assessment 
should be proportionate to the size and importance of the problems.  
 (DG CNECT) asked for more specific guidance from the SG as 
regards the total length of the document, stressing the large number of complex issues 
that need to be analysed. 

Policy options and assessment of impacts 
Section 5.1: Policy options to remove barriers and create incentives for portability 
and cross-border access to content services
DG JRC pointed to a range of studies it has recently published concerning the creative 
sector, mostly concerning the music sector. New studies focussing on the audiovisual 
sector are about to be launched from which the first quantitative results will not be 
available before the end of the year (at the earliest). Data will be collected to investigate 
the link between revenues and content production in the audiovisual sector, as has been 
done for music. The IA does not sufficiently underline the positive impact of measures 
on cross-border access for consumers, in terms of increased choice. Impacts should be 
taken into account in an aggregate manner. Finally, DG CNECT was asked to clarify 
how pan-European licenses (option 4 for problem 1) would solve the problem of cross-
border access. 
DG COMP reiterated their concern about the current exclusion of content accessed 
against other forms of remuneration than direct payment (notably advertisement) from 
the scope of the measures addressing cross-border access/portability. This discrimination 
could also be problematic in view of competition law principles. 
DG EAC enquired about the inclusion of live sports events in the scope of measures on 
portability and cross-border access. If so, a specific analysis of impacts on this sector 
would be required. Aside from sports, DG EAC has strong concerns about the impact of 
the envisaged measures on cultural diversity, in particular as a consequence of a potential 
decrease in the financing of EU audiovisual content. The functioning of the European 
audiovisual sector is based on complex and delicate dynamics, which should be analysed 
in more detail. In case certain negative impacts could not be avoided, the overall benefit 
(e.g. for consumers) should be clearly demonstrated. 
DG JUST offered to provide some contribution on policy option 4 (pan-European 
licences), which appears to be a conflict of law matter. As regards the cross-border 
dimension of enforcement, a recently adopted Regulation has made injunctions directly 
applicable across the EU. 
DG GROW clarified that while it may indeed be theoretically possible to enforce certain 
types of injunctions in other EU Member States, this appears highly unlikely in practice, 
at least as far as injunctions related to IPR enforcement are concerned. A recent public 
consultation held on the topic indeed identified a number of concrete hurdles, including 
the underlying lack of harmonisation of the regulatory framework. Concerning cross-
border access, the line between passive and active sales will be very difficult to draw in 
the online context and requires careful consideration. Even if service providers 
themselves are not allowed to actively market their offers in other EU Member States, 
other intermediaries may set up websites providing links to legal content that can be 
obtained through passive sales, as is already common practice for pirated content. 
DG GROW (Services Unit) further emphasised the need to define the concept of passive 
sales. More clarity on this aspect, as well as more evidence in the form of hard data, are 
required in order to be able to assess the impacts of option 3 (cross-border access through 
passive sales). 
DG COMP asked whether the holdback period proposed as a safeguard in the context of 
the measures on passive sales would apply to all types of content without distinction. 

When defining these measures, it is necessary to ensure that there is still scope for the 
application of competition on a case-by-case basis. 
The SG stressed the need to streamline and shorten the assessment of impacts. As the 
strongest impacts will be felt by the audiovisual sector, the IA should focus more on this 
sector and go less into detail as regards other sectors. The policy options should provide 
certain additional information which is essential in order to assess their impacts. On 
portability, the description of the policy option should specify what would be considered 
as a 'temporary stay', what would be the authentication method, and whether 
compensation for rights holders would be envisaged. On cross-border access, the 
distinction between passive and active sales should be defined precisely, particularly as 
this distinction will be difficult to enforce in an online environment. The IA 
acknowledges that the overall effect of measures enabling passive sales in terms of added 
revenues for rights holders depends on the business model of the service provider and its 
contractual relation with the rights holders. In order to assess the potential new revenues 
for rights holders stemming from passive requests by customers located in Member 
States where their content is not distributed, the IA should thus include data regarding the 
most common model of remuneration (by streaming/download or lump sum). 
 (DG CNECT) reacted to the various comments by indicating that: 
- Any additional contribution providing facts and data, e.g. from DG COMP's sector 
inquiry, would be very useful. 
- The choice to focus on content provided against direct payment (as opposed to other 
forms of remuneration) is driven by realism. The proposed measures are already very 
ambitious and require striking a delicate balance between the respect of the fundamental 
rights of rights holders and the need to ensure free movement, while ensuring appropriate 
remuneration of content owners. This balance would be even more difficult to ensure if 
free/ad-based content was also covered. 
- Live sports programmes will not be covered as the main transactions occurring between 
sports content owners and distributors are not related to copyright (or are so only to a 
minor extent). 
- It does not appear feasible to define a specific quantitative threshold regarding the 
distinction between passive and active sales. 
- The holdback period envisaged in option 3 (passive sales) would apply to AV content. 
- The proposed measures will be without prejudice to the application of competition law. 
- Country of origin in Policy option 4 (pan-European licences) would indeed not per se 
ensure cross-border access; hence the proposal to complement it with a prohibition of 
contractual restrictions between services providers and consumers. 
- Policy option 4 (pan-European licences) would create a legal fiction whereby the act 
relevant for the copyright exploitation of the content would be deemed to take place in 
one country (country of origin). This does not amount to a conflict of law mechanism. 
- Regarding enforcement, the cross-border applicability of injunctions currently requires 
an assessment by a national judge on the basis of an infringement that took place in 
his/her Member State of competence. In a country of origin scenario, there would be no 

infringement taking place in the judge's own country. In case option 4 (pan-European 
licences) would be the chosen option, a solution to this problem would need to be found.  
- As regards portability, the concept of 'temporary stay' needs to be defined. There should 
be no particular issue regarding technological aspects (authentication, quality of service). 
Remuneration of rights holders should not be a problem. 
-  The potential impact of measures on passive sales on rights holders' revenues depends 
indeed on the type of contractual arrangement between rights holders and service 
providers (remuneration on lump-sum or per-use basis), as well as on their respective 
bargaining positions. There is a lack of transparency regarding these contractual 
arrangements. It is however not intended to address this issue as it would require 
interfering too strongly with business decisions. 
Section 5.5.1: Policy options to facilitate the use, including across borders, of 
protected content in digitally-supported teaching practices 

DG EAC asked for further clarification on a number of points, such as the exact 
mandatory elements to be included in the exception and the definition of beneficiaries. 
As regards beneficiaries, the approach should be in line with the current Copyright 
Directive, which provides that the commercial or non-commercial nature of the purposes 
should be analysed with regard to the type of activity, not to the status of the 
 (DG CNECT) indicated that there was no intention to depart from the 
current approach regarding beneficiaries. 
Section 5.6: Policy options to establish clear conditions and facilitate text and data-
mining activities 

DG RTD stressed the important added value of policy intervention in this area (although 
option 5 is perhaps too far-reaching). A number of suggestions will be provided in 
writing in order to complement the description of impacts. A reference to the EU open 
access policy should be added. The text currently focuses on text mining but more could 
be added about data mining. It should be clarified that the proposed exception cannot be 
overridden by contracts. 
DG EAC expressed concerns with regard to policy options 4 and 5, as they would give 
rise to too many risks of abuse. More data should be added concerning cost implications 
in the content of public-private partnerships (PPP). Another sensitive issue is the 
potential illegal downloading of the material. Proposals to address this aspect should be 
strengthened. The impact on cultural diversity should be further elaborated. 
(DG CNECT) recognised that the issue of illegal access was a strong 
concern for rights holders. This issue may be further addressed during the legislative 
process through specific clauses (e.g. anti-circumvention measures). A more detailed 
analysis of the way PPPs are run in the research area will be added. It appears, however, 
unlikely that major companies would enter into a PPP arrangement for the sole purpose 
of benefiting from the TDM exception. As far as cultural diversity is concerned, the 
impact should be very limited as this exception is about scientific publications. The 
impact on the publishing industry, which is relevant to cultural diversity, is assessed 

 (SG) concluded the meeting by stressing the importance of clearly 
identifying the impacts on SMEs and start-ups, as well as on employment. The IA should 
also specify whether micro-enterprises would be covered by the envisaged measures. 
Next steps: 
DGs are invited to send their comments or contributions to DG CNECT (
), with copy to the SG (
), by 20 May. The next meeting of the ISSG is 
tentatively scheduled for early June.