Brussels, 24 October 2018
Interinstitutional files:
2016/0280(COD)
WK 12815/2018 INIT
LIMITE
PI
CODEC
RECH
EDUC
COMPET
AUDIO
CULT
DIGIT
TELECOM
WORKING PAPER
This is a paper intended for a specific community of recipients. Handling and
further distribution are under the sole responsibility of community members.
MEETING DOCUMENT
From:
Presidency
To:
Working Party on Intellectual Property (Copyright)
N° prev. doc.:
WK 12128/18, ST 12513/18
N° Cion doc.:
12254/16 + ADD1 + ADD2 + ADD3 + ADD4
Subject:
Proposal for a Directive of the European Parliament and of the Council on
copyright in the Digital Single Market
- Presidency compromise suggestions on Articles 7 to 10 and corresponding
recitals (21) to (30)
In preparation of the discussions at the Copyright Attachés meeting on 30 October 2018, delegations will
find attached Presidency compromise suggestions on Articles 7 to 10 and corresponding recitals (21) to
(30), of the above mentioned proposal.
The Presidency suggestions are set out in the 4th column of the annexed table. Changes compared to the
Council text set out in the 3rd column are indicated in
bold.
WK 12815/2018 INIT
LIMITE
EN
Some optional elements that we want to discuss are highlighted in the 4th column in [
italics]. Comments
and explanations are also included in the 4th column in [
italics].
WK 12815/2018 INIT
LIMITE
EN
Proposal for a Directive of the European Parliament and of the Council
on copyright in the Digital Single Market
COM (2016) 593 final - 2016/0280 (COD)
Exploration of possible compromise solutions
ARTICLES 7 to 10
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
157.
TITLE III
TITLE III
TITLE III
MEASURES TO
MEASURES TO
MEASURES TO
IMPROVE LICENSING
IMPROVE LICENSING
IMPROVE LICENSING
PRACTICES AND
PRACTICES AND
PRACTICES AND
ENSURE WIDER
ENSURE WIDER
ENSURE WIDER
ACCESS TO CONTENT
ACCESS TO CONTENT
ACCESS TO CONTENT
158.
CHAPTER 1
CHAPTER 1
CHAPTER 1
Out-of-commerce works
Out-of-commerce works
Out-of-commerce works
159.
Art. 7, title
Article 7
Article 7
Article 7
Article 7
Use of out-of-commerce
Use of out-of-commerce
Use of out-of-commerce
Use of out-of-commerce
works by cultural heritage works by cultural heritage works by cultural heritage works by cultural heritage
institutions
institutions
institutions
institutions
160.
Art. 7, para
1.
Member States
1.
Member States shall 1.
Member States shall 1.
Member States
1,
shall provide that when a
provide that when a
provide that when a
shall provide that a
collective management
collective management
collective management
collective management
organisation, on behalf of
organisation, on behalf of
organisation, on behalf of
organisation, in accordance
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
introductory its members, concludes a
its members, concludes a
in accordance with its
with its mandates, may
part
non-exclusive licence for
non-exclusive licence for
members,
conclude a non-exclusive
non-commercial purposes
non-commercial purposes
concludes
mandates, may
licence for non-commercial
with a cultural heritage
with a cultural heritage
conclude a non-exclusive
purposes with a cultural
institution for the
institution for the
licence for non-commercial heritage institution for the
digitisation, distribution,
digitisation, distribution,
purposes with a cultural
reproduction, distribution,
communication to the
communication to the
heritage institution for the
communication to the
public or making available public or making available digitisation
reproduction,
public or making available
of out-of-commerce works of out-of-commerce works distribution,
to the public of out-of-
or other subject-matter
or other subject-matter
communication to the
commerce works or other
permanently in the
permanently in the
public or making available subject-matter permanently
collection of the institution, collection of the institution,
to the public of out-of-
in the collection of the
such a non-exclusive
such a non-exclusive
commerce works or other
institution, irrespective of
licence may be extended or licence may be extended or subject-matter permanently whether all rightholders
presumed to apply to
presumed to apply to
in the collection of the
covered by the licence have
rightholders of the same
rightholders of the same
institution, such a non-
mandated the collective
category as those covered
category as those covered
exclusive licence may be
management organisation,
by the licence who are not by the licence who are not extended or presumed to
provided that:
represented by the
represented by the
apply to rightholders of the
collective management
collective management
same category as those
organisation, provided that: organisation, provided that:
irrespective of whether all
rightholders covered by
the licence who are not
represented by
have
mandated the collective
management organisation,
provided that:
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
161.
Art. 7, para
(a)
the collective
(a)
the collective
(a)
the collective
(a)
the collective
1, point (a)
management organisation
management organisation
management organisation
management organisation
is, on the basis of mandates is, on the basis of mandates is, on the basis of mandates is, on the basis of mandates
from rightholders, broadly from rightholders, broadly from rightholders,
from rightholders,
representative of
representative of
broadly
sufficiently
sufficiently representative
rightholders in the category rightholders in the category representative of
of rightholders in the
of works or other subject-
of works or other subject-
rightholders in the
relevant type of works or
matter and of the rights
matter and of the rights
category
relevant type of
other subject-matter and of
which are the subject of the which are the subject of the works or other subject-
the rights which are the
licence;
licence;
matter and of the rights
subject of the licence;
which are the subject of the
licence;
162.
Art. 7, para
(b)
equal treatment is
(b)
equal treatment is
(b)
equal treatment is
(b)
equal treatment is
1, point (b)
guaranteed to all
guaranteed to all
guaranteed to all
guaranteed to all
rightholders in relation to
rightholders in relation to
rightholders in relation to
rightholders in relation to
the terms of the licence;
the terms of the licence;
the terms of the licence;
the terms of the licence
.
163.
Art. 7, para
(c)
all rightholders may (c)
all rightholders may (c)
all rightholders may [
This point is moved to new
1, point (c)
at any time object to their
at any time object to their
at any time object
paragraph 1b below – line
works or other subject-
works or other subject-
to
exclude the possibility
167]
matter being deemed to be matter being deemed to be
for collective
out of commerce and
out of commerce and
management
exclude the application of
exclude the application of
organisations to license
the licence to their works
the licence to their works
their works or other
or other subject-matter.
or other subject-matter.
subject-matter being
deemed to be out of
commerce and
in
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
accordance with this
Article, either in general
or in specific cases, or
exclude the application of
the
any licence
granted in
accordance with this
Article to their works or
other subject-matter.
164.
Art. 7, para
1a.
Member States
1a.
Member States
1a
shall provide for an
shall provide for an
exception or limitation to
exception or limitation to
the rights provided for in
the rights provided for in
Articles 2 and 3 of
Articles 2 and 3 of
Directive 2001/29/EC,
Directive 2001/29/EC,
Articles 5(a) and 7(1) of
Articles 5(a), (b), (d) and
Directive 96/9/EC, Article
(e) and 7(1) of Directive
4(1) of Directive
96/9/EC, Article 4(1)(a)
2009/24/EC, and Article
and (b) of Directive
11(1) of this Directive,
2009/24/EC, and Article
permitting cultural
11(1) of this Directive, in
heritage institutions to
order to allow cultural
make copies available
heritage institutions to
online of out-of-commerce
make available out-of-
works that are located
commerce works or other
permanently in their
subject-matter that are
collections for not-for-
permanently in their
collections for non-
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
profit purposes, provided
commercial purposes,
that:
provided that:
165.
Art. 7, para
(a)
the name of the
(a)
[the author or any
1a, point (a)
author or any other
other identifiable
identifiable rightholder is
rightholder was informed
indicated, unless this turns
individually at least six
out to be impossible;
months before the use,
unless this turns out to be
impossible, and] the name
of the author or any other
identifiable rightholder is
indicated, unless this
turns out to be
impossible;
166.
Art. 7, para
(b)
all rightholders
(b)
such works or
1a, point (b)
may at any time object to
other subject-matter are
their works or other
made available on
subject-matter being
dedicated non-
deemed to be out of
commercial portals
commerce and exclude the
[which are accessible on
application of the
the premises of cultural
exception to their works or
heritage institutions].
other subject-matter.
[
Text of EP covered in new
paragraph 1b below – line
167]
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
167.
Art. 7, para
1b.
Member States
1b. Member States shall
1b
shall provide that the
provide that the exception
exception adopted
or limitation referred to
pursuant to paragraph 1a
in the previous paragraph
does not apply in sectors
only applies to types of
or for types of works
works or other subject-
where appropriate
matter for which no
licensing-based solutions,
collective management
including but not limited
organisation exists that
to solutions provided for in
fulfils the conditions
paragraph 1, are available.
referred to in point (a) of
Member States shall, in
paragraph 1.
consultation with authors,
other rightholders,
1c. Member States shall
collective management
provide that all
organisations and cultural
rightholders may at any
heritage institutions,
time, easily and
determine the availability
effectively, exclude their
of extended collective
works or other subject-
licensing-based solutions
matter from the licensing
for specific sectors or types
mechanism referred to in
of works.
paragraph 1 or from uses
under the exception or
limitation referred to in
paragraph 1a, either in
general or in specific
cases, including after the
conclusion of a licence or
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
the beginning of the use
concerned.
168.
Art. 7, para
2.
A work or other
2.
A work or other
2.
A work or other
2.
A work or other
2, sub-para 1 subject-matter shall be
subject-matter shall be
subject-matter shall be
subject-matter shall be
deemed to be out of
deemed to be out of
deemed to be out-of-
deemed to be out-of-
commerce when the whole commerce when the whole commerce when
it can be
commerce when it can be
work or other subject-
work or other subject-
presumed in good faith
presumed in good faith that
matter, in all its
matter, in all its
that the whole work or
the whole work or other
translations, versions and
translations, versions and
other subject-matter, in all subject-matter is not
manifestations, is not
manifestations, is not
its translations, versions
available to the public
available to the public
available to the public
and manifestations, is not
through customary
through customary
through customary
available to the public
channels of commerce after
channels of commerce and channels of commerce and through customary
a reasonable effort is made
cannot be reasonably
cannot be reasonably
channels of commerce and to determine such
expected to become so.
expected to become so.
cannot be reasonably
availability.
Member States may
expected to become so.
provide a cut-off date in
after a reasonable effort
relation to determining
is made to determine such
whether a work previously availability.
commercialised is deemed
to be out of commerce.
[See definition of out-of-
commerce work in
Parliament’s Article 2(4a)
(rows 122-126)]
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
169.
Art. 7, para
Member States shall, in
Member States shall, in
Member States shall, in
Member States may
2, sub-para 2 consultation with
consultation with
consultation with
provide for specific
rightholders, collective
rightholders, collective
rightholders, collective
requirements to determine
management organisations management organisations management organisations whether works and other
and cultural heritage
and cultural heritage
and cultural heritage
subject-matter can be
institutions, ensure that the institutions, ensure that the institutions, ensure that the licensed in accordance with
requirements used to
requirements used to
may provide for specific
paragraph 1
or used under
determine whether works
determine whether works
requirements used to
the exception or
and other subject-matter
and other subject-matter
determine whether works
limitation referred to in
can be licensed in
can be licensed in
and other subject-matter
paragraph 1a. Such
accordance with paragraph accordance with paragraph can be licensed in
requirements shall not
1 do not extend beyond
1
or used in accordance
accordance with paragraph extend beyond what is
what is necessary and
with paragraph 1a do not
1 do
. Such requirements
necessary and reasonable
,
reasonable and do not
extend beyond what is
shall not extend beyond
and shall not preclude the
preclude the possibility to
necessary and reasonable
what is necessary and
possibility to determine the
determine the out-of-
and do not preclude the
reasonable
, and do
shall not out-of-commerce status of
commerce status of a
possibility to determine the preclude the possibility to
a set of works or other
collection as a whole, when out-of-commerce status of
determine the out-of-
subject-matter as a whole,
it is reasonable to presume a collection as a whole,
commerce status of a
when it is reasonable to
that all works or other
when it is reasonable to
collection as
set of works
presume that all works or
subject-matter in the
presume that all works or
or other subject-matter
other subject-matter are
collection are out of
other subject-matter in the
as a whole, when it is
out-of commerce.
commerce.
collection are out of
reasonable to presume that
commerce.
all works or other subject-
matter in the collection are
out
-of
-commerce.
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
170.
Art. 7,
3.
Member States
3. Member States shall
3.
[Moved to new
3.
[Moved to new Article
para 3,
shall provide that
provide that appropriate
Article8a(2)]
8a(2)]
introductory appropriate publicity
publicity measures are
part
measures are taken
taken regarding:
regarding:
171.
Art. 7, para
(a)
the deeming of
(a) the deeming of works
3, point (a)
works or other subject-
or other subject-matter as
matter as out of commerce; out of commerce;
172.
Art. 7, para
(b)
the licence, and in
(b) the
any licence, and in
3, point (b)
particular its application to particular its application to
unrepresented rightholders; unrepresented rightholders;
173.
Art. 7, para
(c)
the possibility of
(c) the possibility of
3, point (c)
rightholders to object,
rightholders to object,
referred to in point (c) of
referred to in point (c) of
paragraph 1;
paragraph 1
and point (b)
of paragraph 1a;
174.
Art. 7, para
including during a
including during a
3, closing
reasonable period of time
reasonable period of time
phrase
before the works or other
at least six months before
subject-matter are digitised, the works or other subject-
distributed, communicated matter are digitised,
to the public or made
distributed, communicated
available.
to the public or made
available.
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
175.
Art. 7,
4.
Member States
4.
Member States shall 4.
Member States shall 4.
Member States
para 4,
shall ensure that the
ensure that the licences
ensure that the licences
shall ensure that the
introductory licences referred to in
referred to in paragraph 1
referred to in paragraph 1
licences referred to in
part / Art. 7, paragraph 1 are sought
are sought from a collective are sought from a
paragraph 1 are sought
para 4
from a collective
management organisation
collective management
from a collective
(Council)
management organisation
that is representative for the organisation that is
management organisation
that is representative for the Member State where:
representative for the
that is representative for
Member State where:
Member State where:
the
the Member State where
cultural heritage
the cultural heritage
institution is established. institution is established.
176.
Art. 7,
5.
This Article shall
5.
This Article shall
para 5,
not apply to sets of out-of- not apply to sets of out-of-
introductory
commerce if, following
commerce if, on the basis
part
the reasonable effort to
of the reasonable effort
(Council)
determine commercial
referred to in paragraph 2,
availability, there is
there is evidence that such
evidence that such sets
sets predominantly consist
predominantly consist of: of:
177.
Art. 7,
(a)
the works or
(a)
the works or
(a)
the works or
other (a)
works or other
para 4, point phonograms were first
phonograms were first
subject-matter
subject-matter first
(a) (EP)/
published or, in the absence published or, in the absence phonograms were first
published or, in the absence
Art. 7, para
of publication, where they
of publication, where they
published or, in the
of publication, first
5, point (a)
were first broadcast, except were first broadcast, except absence of publication,
broadcast in a third
(Council)
for cinematographic and
for cinematographic and
where they were first
country, except for
audiovisual works;
audiovisual works;
broadcast
in a third
cinematographic or
country, except for
audiovisual works;
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
cinematographic and
or
audiovisual works;
178.
Art. 7,
(b)
the producers of the (b)
the producers of the (b)
cinematographic
(b)
cinematographic or
para 4, point works have their
works have their
or audiovisual works, the audiovisual works, the
(b) (EP)/
headquarters or habitual
headquarters or habitual
producers of the
producers of which have
Art. 7, para
residence, for
residence, for
works
which have their
their headquarters or
5, point (b)
cinematographic and
cinematographic and
headquarters or habitual
habitual residence in a third
(Council)
audiovisual works; or
audiovisual works; or
residence, for
country; or
cinematographic and
audiovisual works
in a
third country; or
179.
Art. 7,
(c)
the cultural heritage (c)
the cultural heritage c)
the cultural heritage c)
works or other
para 4, point institution is established,
institution is established,
institution is established,
subject-matter of third
(c) (EP) /Art. when a Member State or a when a Member State or a
works or other subject-
country nationals when a
7, para 5,
third country could not be
third country could not be
matter of third country
Member State or a third
point (c)
determined, after
determined, after
nationals when a Member country could not be
(Council)
reasonable efforts,
reasonable efforts,
State or a third country
determined, after a
according to points (a) and according to points (a) and could not be determined,
reasonable effort,
(b).
(b).
after
a reasonable
according to points (a) and
efforts
effort, according to (b);
points (a) and (b).
);
180.
Art. 7, para 5 5.
Paragraphs 1, 2 and 5.
Paragraphs 1, 2 and 5.
Paragraphs 1, 2 and unless the collective
(EP)/ Art. 7, 3 shall not apply to the
3 shall not apply to the
3 shall not apply to
unless
management organisation
para 5,
works or other subject-
works or other subject-
the works or other subject- is sufficiently
closing
matter of third country
matter of third country
matter
collective
representative of
nationals except where
nationals except where
management organisation rightholders of that third
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
phrase
points (a) and (b) of
points (a) and (b) of
is sufficiently
country in the meaning of
(Council)
paragraph 4 apply.
paragraph 4 apply.
representative of
point (a) of paragraph 1.
rightholders of that third
country nationals except
where points
in the
meaning of point (a) and
(b) of paragraph 4 apply
1.
181.
Art. 8, title
Article 8
Article 8
Article 8
Article 8
Cross-border uses
Cross-border uses
Cross-border uses
Cross-border uses
182.
Art. 8, para 1 1.
Works or other
1.
Works
Out-of-
1.
Works or other
1.
A licence granted in
subject-matter covered by a
commerce works or other
subject-matter covered by
accordance with Article 7
licence granted in
subject-matter covered by a a
A licence granted in
may allow the use of out-
accordance with Article 7
licence granted in
accordance with Article 7
of-commerce works or
may be used by the cultural accordance with Article 7
may be used
allow the use other subject-matter by the
heritage institution in
may be used by the cultural
of out-of-commerce
cultural heritage institution
accordance with the terms
heritage institution in
works or other subject-
in any Member State.
of the licence in all
accordance with the terms
matter by the cultural
Member States.
of the licence
that Article
heritage institution in
[2. The uses of works and
in all Member States.
accordance with the terms
other subject-matter under
of the licence in all
any
the exception or limitation
Member States
State.
referred to in Article 7(1a)
shall be deemed to occur
solely in the Member State
where the cultural
heritage institution
undertaking that use is
established.]
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
183.
Art. 8, para 2 2.
Member States
2.
Member States shall 2.
[Moved to new Article
2.
[Moved to new Article
shall ensure that
ensure that information that
8a(1)]
8a(1)]
information that allows the allows the identification of
identification of the works the works or other subject-
or other subject-matter
matter covered by a licence
covered by a licence
granted in accordance with
granted in accordance with Article 7 and information
Article 7 and information
about the possibility of
about the possibility of
rightholders to object
rightholders to object
referred to in
point (c) of
referred to in Article
Article 7(1)
and point (b)
7(1)(c) are made publicly
of Article 7(1a) are made
accessible in a single
publicly
permanently,
online portal for at least six
easily and effectively
months before the works or accessible in a
public
other subject-matter are
single online portal for at
digitised, distributed,
least six months before the
communicated to the public works or other subject-
or made available in
matter are digitised,
Member States other than
distributed, communicated
the one where the licence is to the public or made
granted, and for the whole available in Member States
duration of the licence.
other than the one where
the licence is granted,
or in
the cases covered by
Article 7(1a), where the
cultural heritage
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
institution is established
and for the whole duration
of the licence.
184.
Art. 8, para 3 3.
The portal referred 3.
The portal referred 3.
[Moved to new Article
3.
[Moved to new Article
to in paragraph 2 shall be
to in paragraph 2 shall be
8a(1) second
8a(1) second
established and managed
established and managed
subparagraph]
subparagraph]
by the European Union
by the European Union
Intellectual Property Office Intellectual Property Office
in accordance with
in accordance with
Regulation (EU) No
Regulation (EU) No
386/2012.
386/2012.
185.
Art. 8a, title
Article 8a
Article 8a
Publicity measures
Publicity measures
186.
Art. 8a, para
1.
Member States shall 1.
Member States
1, sub-para 1
ensure that information that shall ensure that
allows
for the purposes of information
from cultural
the identification of the
heritage institutions,
out-of-commerce works or
collective management
other subject-matter
organisations or relevant
covered by a licence
public authorities for the
granted in accordance with purposes of the
Article 7 and
as well as
identification of the out-of-
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
information about the
commerce works or other
possibility
possibilities of
subject-matter
covered by
rightholders to object
a licence granted in
referred to in Article
accordance with Article
7(1)(c) are
), and, as soon
7(1) or used under the
as it is available,
exception or limitation
information on the
referred to in Article
parties to the licence, the 7(1a) as well as
covered territories and
information about the
the allowed uses is made
possibilities of rightholders
publicly accessible in a
referred to in Article
7(1c),
single online portal
and, as soon as it is
for
from at least six months available
and where
before the works or other
relevant, information on
subject-matter are
the parties to the licence,
digitised, distributed,
the covered territories
and
communicated to the
the allowed uses
is made
public or made available in
permanently, easily and
Member States other than
effectively accessible in a
the one where the licence is
public single online portal
granted, and for the whole from at least six months
duration of
to the public in before the works or other
accordance with the
subject-matter are
licence.
distributed, communicated
[Article 8(2) of the COM
to the public or made
proposal, amended]
available to the public in
accordance with the licence
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
or under the exception or
limitation.
[Article 8(2) of the COM
proposal, amended]
187.
Art. 8a, para
3.
The portal referred The portal shall be
1, sub-para 2
to in paragraph 2 shall be
established and managed
established and managed
by the European Union
by the European Union
Intellectual Property Office
Intellectual Property Office in accordance with
in accordance with
Regulation (EU) No
Regulation (EU) No
386/2012.
386/2012.
[Article 8(3) of the COM
[Article 8(3) of the COM
proposal, amended]
proposal, amended]
188.
Art. 8a, para
2.
Member States shall 2.
Member States
2
provide that
, if necessary
shall provide that, if
for the general awareness necessary for the general
of rightholders, further
awareness of rightholders,
appropriate publicity
further appropriate
measures are taken
publicity measures are
regarding: (a) the deeming taken regarding the
of works or other subject-
possibility for collective
matter as out of commerce; management organisations
(b) the licence, and in
to license works or other
particular its application to subject-matter in
unrepresented rightholders;
accordance with Article 7,
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
the possibility for
the licences granted
, the
collective management
uses under the exception
organisations to license
or limitation referred to
works or other subject-
in Article 7(1a) and the
matter in accordance
possibilities of rightholders
with Article 7, the
referred to in Article
7(1c).
licences granted and (c)
the possibilities to object of The additional appropriate
rightholders referred to in
publicity measures shall be
point (c) of paragraph 1
taken in the Member State
Article 7(1)(c) ;
.
where the licence is sought
in accordance to Article
Including during a
7(1) or, for uses under the
reasonable period of time
exception or limitation
before the works or other
referred to in Article
subject-matter are digitised,
7(1a), where the cultural
distributed, communicated
heritage institution is
to the public or made
established. If there is
available.
evidence, such as the origin
The additional
of the works or other
appropriate publicity
subject-matter, to suggest
measures shall be taken
that the awareness of
in the Member State
rightholders could be more
where the licence is
efficiently raised in other
sought. If there is
Member States or third
evidence, such as the
countries, such publicity
origin of the works or
measures shall also cover
other subject-matter, to
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
suggest that the
those Member States and
awareness of rightholders third countries.
could be more efficiently
raised in other Member
[Article 7(3) of the COM
States or third countries, proposal, amended]
such publicity measures
shall also cover those
Member States and third
countries.
[Article 7(3) of the COM
proposal, amended]
189.
Art. 9, title
Article 9
Article 9
Article 9
Article 9
Stakeholder dialogue
Stakeholder dialogue
Stakeholder dialogue
Stakeholder dialogue
190.
Art 9
Member States shall ensure Member States shall ensure Member States shall ensure
Member States shall
a regular dialogue between a regular dialogue between
consult rightholders,
consult rightholders,
representative users' and
representative users' and
collective management
collective management
rightholders' organisations, rightholders' organisations,
organisations and
organisations and cultural
and any other relevant
and any other relevant
cultural heritage
heritage institutions in each
stakeholder organisations,
stakeholder organisations,
institutions in each sector sector before establishing
to, on a sector-specific
to, on a sector-specific
before establishing
specific requirements
basis, foster the relevance
basis, foster the relevance
specific requirements
pursuant to Article 7(2),
and usability of the
and usability of the
pursuant to Article 7(2),
and encourage a regular
licensing mechanisms
licensing mechanisms
and encourage a regular
dialogue between
referred to in Article 7(1),
referred to in Article 7(1)
dialogue between
representative users' and
ensure the effectiveness of
and the exception referred representative users' and
rightholders' organisations,
the safeguards for
to in Article 7(1a), ensure
rightholders' organisations, including collective
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
rightholders referred to in
the effectiveness of the
including collective
management organisations,
this Chapter, notably as
safeguards for rightholders
management
and any other relevant
regards publicity measures, referred to in this Chapter,
organisations, and any
stakeholder organisations,
and, where applicable,
notably as regards publicity other relevant stakeholder
on a sector-specific basis,
assist in the establishment
measures, and, where
organisations, to, on a
to
foster the relevance and
of the requirements
applicable, assist in the
sector-specific basis,
to
usability of the licensing
referred to in the second
establishment of the
foster the relevance and
mechanisms referred to in
subparagraph of Article
requirements referred to in usability of the licensing
Article 7(1) and
to ensure
7(2).
the second subparagraph of mechanisms referred to in
the effectiveness of the
Article 7(2).
Article 7(1),
) and to ensure safeguards for rightholders
the effectiveness of the
referred to in this Chapter.
safeguards for rightholders
referred to in this Chapter,
notably as regards publicity
measures, and, where
applicable, assist in the
establishment of the
requirements referred to in
the second subparagraph of
Article 7(2)
.
191.
CHAPTER 1a
CHAPTER 1a
Measures to facilitate
Measures to facilitate
collective licensing
collective licensing
192.
Art. 9a, title
Article 9a
Article 9a
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
Collective licensing with Collective licensing with an
an extended effect
extended effect
193.
Art. 9a, para
1.
Member States
1.
Member States may
1
may provide, as far as the provide, as far as the use
use within their national
within their national
territory is concerned
territory is concerned and
and subject to safeguards subject to safeguards
provided for in this
provided for in this Article,
Article, that when a
that when a collective
collective management
management organisation,
organisation, in
in accordance with its
accordance with its
mandates from
mandates from
rightholders, enters into a
rightholders, enters into a licensing agreement for the
licensing agreement for
exploitation of works or
the exploitation of works other subject-matter such
or other subject-matter
an agreement may be
such an agreement may
extended to apply to the
be extended to apply to
rights of rightholders who
the rights of rightholders have not authorised the
who have not authorised
organisation to represent
the organisation to
them by way of
represent them by way of assignment, licence or any
assignment, licence or
other contractual
any other contractual
arrangement; or, with
arrangement; or, with
respect to such an
respect to such an
agreement, the organisation
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
agreement, the
has a legal mandate or is
organisation has a legal
presumed to represent
mandate or is presumed
rightholders who have not
to represent rightholders authorised the organisation
who have not authorised
accordingly.
the organisation
accordingly.
194.
Art. 9a, para
2.
Member States
2.
Member States
2
shall ensure that the
shall ensure that the
licensing mechanism
licensing mechanism
referred to in paragraph referred to in paragraph 1 is
1 is only applied within
only applied within well-
well-defined areas of use defined areas of use where
where obtaining
obtaining authorisations
authorisations from
from rightholders on an
rightholders on an
individual basis is typically
individual basis is
onerous and impractical to
typically onerous and
a degree that makes the
impractical to a degree
required licensing
that makes the required
transaction unlikely due to
licensing transaction
the nature of the use or of
unlikely due to the nature the types of works or other
of the use or of the types
subject-matter concerned
of works or other subject- and that such mechanism
matter concerned and
safeguards the legitimate
that such mechanism
interests of rightholders.
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
safeguards the legitimate
interests of rightholders.
195.
Art. 9a, para
3.
The safeguards
3.
The safeguards
3
referred to in paragraph referred to in paragraph 1
1 must ensure that:
must ensure that:
196.
Art. 9a, para
(a)
the organisation is, (a)
the organisation is,
3, point (a)
on the basis of mandates on the basis of mandates
from rightholders,
from rightholders,
sufficiently representative sufficiently representative
of rightholders in the
of rightholders in the
relevant type of works or relevant type of works or
other subject-matter and other subject-matter and of
of the rights which are
the rights which are the
the subject of the licence subject of the licence for
for the relevant Member the relevant Member State;
State;
197.
Art. 9a, para
(b)
equal treatment is (b)
equal treatment is
3, point (b)
guaranteed to all
guaranteed to all
rightholders in relation to rightholders in relation to
the terms of the licence;
the terms of the licence;
198.
Art. 9a, para
(c)
rightholders who
(c)
rightholders who
3, point (c)
have not authorised the
have not authorised the
organisation operating
organisation operating the
the licence may at any
licence may at any time
time easily and effectively easily and effectively
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
exclude their works or
exclude their works or
other subject-matter
other subject-matter from
from the licensing
the licensing mechanism
mechanism established in established in accordance
accordance with this
with this Article;
Article;
199.
Art. 9a, para
(d)
appropriate
(d)
appropriate
3, point (d)
publicity measures are
publicity measures are
taken to raise the
taken to raise the
awareness of rightholders awareness of rightholders
regarding the possibility
regarding the possibility for
for organisations to
organisations to license
license works or other
works or other subject-
subject-matter and the
matter and the licensing
licensing taking place in
taking place in accordance
accordance with this
with this Article, and the
Article, and the
possibilities of rightholders
possibilities of
referred to in point (c)
rightholders referred to
starting from a reasonable
in point (c) starting from period before the works or
a reasonable period
other subject-matter are
before the works or other used under the licence.
subject-matter are used
Publicity measures should
under the licence.
be effective without the
Publicity measures
need to inform each
should be effective
rightholder individually.
without the need to
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
inform each rightholder
individually.
200.
Art. 9a, para
4.
The rules provided 4.
The rules provided
4
for in this Article are
for in this Article are
without prejudice to the
without prejudice to the
application of collective
application of collective
licensing mechanisms
licensing mechanisms with
with an extended effect in an extended effect in
conformity with other
conformity with other
provisions of Union law,
provisions of Union law,
including those which
including those which
allow exceptions or
allow exceptions or
limitations, and shall not limitations, and shall not
apply to mandatory
apply to mandatory
collective management of collective management of
rights.
rights.
201.
Art. 9a, para
5.
Where the law of a 5.
Where the law of a
5
Member State provides
Member State provides for
for a licensing mechanism a licensing mechanism in
in accordance with this
accordance with this
Article, the Member
Article, the Member State
State concerned shall
concerned shall inform the
inform the Commission
Commission about the
about the scope of that
scope of that law, purposes
law, purposes and types
and types of licences that
of licences that may be
may be introduced under
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
introduced under that
that law as well as contact
law as well as contact
details for organisations
details for organisations
issuing licences in
issuing licences in
accordance with the
accordance with the
mechanism in paragraph 1.
mechanism in paragraph The Commission shall
1. The Commission shall publish this information.
publish this information.
202.
Art. 9a, para
6.
Based on the
6. Based on the information
6
information received
received pursuant to
pursuant to paragraph 5 paragraph 5 and on the
and on the discussions in discussions in the contact
the contact committee
committee referred to in
referred to in Article
Article 12(3) of Directive
12(3) of Directive
2001/29/EC, the
2001/29/EC, the
Commission shall, by
10
Commission shall, by 31
April 2021, submit to the
December 2020, submit
European Parliament and to
to the European
the Council a report on the
Parliament and to the
use of such mechanisms
Council a report on the
referred to in paragraph 1
use of such mechanisms
in the EU and their impact
referred to in paragraph on licensing and
1 in the EU and their
rightholders. The
impact on licensing and
Commission’s report shall
rightholders. The
be accompanied, if
Commission’s report
appropriate, by a legislative
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
shall be accompanied, if
proposal, including as
appropriate, by a
regards the cross-border
legislative proposal,
effect of such national
including as regards
schemes.
publicity measures, and,
where applicable, assist in
the establishment of the
requirements referred to in
the second subparagraph of
Article 7(2).
the cross-
border effect of such
national schemes.
204.
Art. 10, title
Article 10
Article 10
Article 10
Article 10
Negotiation mechanism
Negotiation mechanism
Negotiation mechanism
Negotiation mechanism
205.
Art. 10, sub- Member States shall ensure Member States shall ensure Member States shall ensure Member States shall ensure
para 1
that where parties wishing that where parties wishing
that where parties
that parties facing
to conclude an agreement
to conclude an agreement
wishing
facing difficulties difficulties related to the
for the purpose of making
for the purpose of making
related to the licensing of licensing of rights when
available audiovisual
available audiovisual works
rights when seeking to
seeking to conclude an
works on video-on-demand on video-on-demand
conclude an agreement for agreement for the purpose
platforms face difficulties
platforms face difficulties
the purpose of making
of making available
relating to the licensing of
relating to the licensing of
available audiovisual
audiovisual works on
rights, they may rely on the
audiovisual rights, they
works on video-on-demand video-on-demand services,
assistance of an impartial
may rely on the assistance
platforms face difficulties
may rely on the assistance
body with relevant
of an impartial body with
relating to the licensing of of an impartial body or of
experience. That body shall relevant experience. That
rights, they
services, may
mediators. The
impartial
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
provide assistance with
body
The impartial body
rely on the assistance of an body
created or
negotiation and help reach
created or designated by
impartial body with
designated by the
agreements.
the Member State for the
relevant experience. That
or Member State for the
purpose of this Article
of mediators. The body
or purpose of this Article or
shall provide assistance
to
mediators shall provide
mediators shall provide
the parties with negotiation assistance
to the parties
assistance to the parties
and help
them to reach
with negotiation
their
with their negotiation
s and
agreement.
negotiations and help
help them reach
them reach agreements
,
agreements, including,
including, where
where appropriate, by
appropriate, by
submitting proposals to the
submitting proposals to
parties.
the parties.
206.
Art. 10, sub- No later than [date
No later than [date
No later than [date
Member States shall notify
para 2
mentioned in Article 21(1)] mentioned in Article 21(1)] mentioned in Article 21(1)] to the Commission the
Member States shall notify Member States shall
notify Member States shall notify body or mediators referred
to the Commission the
to
inform the Commission
to the Commission the
to in paragraph 1 no later
body referred to in
of the body referred to in
body
or mediators
than [date mentioned in
paragraph 1.
paragraph 1.
they create or referred to in paragraph 1
Article 21(1)]. In cases
designate pursuant to the
no later than [date
where Member States have
first paragraph.
mentioned in Article
chosen to rely on
21(1)]. In cases where
mediation, the notification
Member States have
to the Commission shall at
chosen to rely on
least include, when
mediation, the
available, the source where
notification to the
relevant information on the
Commission shall at least
Location
COMMISSION
COUNCIL TEXT
POSSIBLE
PROPOSAL
EP TEXT
COMPROMISE
COM(2016)593
doc. 9134/18
SOLUTION
include, when available,
entrusted mediators can be
the source where relevant found.
information on the
entrusted mediators can
be found.
207.
Art. 10, sub-
To encourage the
Member States shall
para 3
availability of audiovisual
encourage dialogue
works on video-on-
between representative
demand platforms,
organisations of authors,
Member States shall foster
producers, video-on-
dialogue between
demand platforms and
representative
other relevant stakeholders
organisations of authors,
in order to promote the
producers, video-on-
availability of audiovisual
demand platforms and
works on video-on-demand
other relevant
platforms.
stakeholders.
RECITALS 21 to 30
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
42.
(21) For the purposes of this (21) For the purposes of this
(21) For the purposes of this (21) For the purposes of this
Directive, works and other
Directive, works and other
Directive, works and other
Directive, works and other
subject-matter should be
subject-matter should be
subject-matter should be
subject-matter should be
considered to be permanently in considered to be permanently in considered to be permanently in considered to be permanently in
the collection of a cultural
the collection of a cultural
the collection of a cultural
the collection of a cultural
heritage institution when copies heritage institution when copies heritage institution when copies heritage institution when copies
are owned or permanently held
of such works or other subject are owned or permanently held
of such works or other
by the cultural heritage
matter are owned or
by the cultural heritage
subject-matter are owned or
institution, for example as a
permanently held by the
institution
such institutions, for permanently held by such
result of a transfer of ownership cultural heritage institution,
example as a result of a transfer institutions, for example as a
or licence agreements.
those organisations, for
of ownership or licence
result of a transfer of ownership
example as a result of a transfer agreements
or permanent
or licence agreements
, legal
of ownership or
, licence
custody arrangements.
deposit obligations or
agreements,
a legal deposit or a
permanent custody
long-term loan . Works or
arrangements.
other subject matter that
cultural heritage institutions
access temporarily via a third-
party server are not considered
as being permanently in their
collections.
46.
(22) Cultural heritage
(22) Cultural heritage
(22) Cultural heritage
(22) Cultural heritage
institutions should benefit from institutions should benefit from institutions should benefit from institutions should benefit from
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
a clear framework for the
a clear framework for the
a clear framework for the
a clear framework for the
digitisation and dissemination,
digitisation and dissemination,
digitisation and dissemination, digitisation and dissemination,
including across borders, of
including across borders, of
including across borders, of
including across borders, of
out-of-commerce works or
out-of-commerce works or
out-of-commerce works or
works or other subject-matter
other subject-matter. However, other subject-matter. However, other subject-
matter.
that are
that are considered out of
the particular characteristics of the particular characteristics of
considered out of commerce
commerce for the purposes of
the collections of out-of-
the collections of out-of-
for the purposes of this
this Directive.
However, the
commerce works mean that
commerce works mean that
Directive. However, the
particular characteristics of the
obtaining the prior consent of
obtaining the prior consent of
particular characteristics of the collections of out-of-commerce
the individual rightholders may the individual rightholders may collections of out-of-commerce works, together with the
be very difficult. This can be
be very difficult. This can be
works
, together with the
amount of works
and other
due, for example, to the age of
due, for example, to the age of
amount of works involved in
subject-matter involved in
the works or other subject-
the works or other subject-
mass digitisation projects,
mass digitisation projects, mean
matter, their limited
matter, their limited
mean that obtaining the prior
that obtaining the prior consent
commercial value or the fact
commercial value or the fact
consent of the individual
of the individual rightholders
that they were never intended
that they were never intended
rightholders may be very
may be very difficult. This can
for commercial use. It is
for commercial use
or have
difficult. This can be due, for
be due, for example, to the age
therefore necessary to provide
never been in commerce. It is
example, to the age of the
of the works or other subject-
for measures to facilitate the
therefore necessary to provide
works or other subject-matter,
matter, their limited
licensing of rights in out-of-
for measures to facilitate the
their limited commercial value commercial value or the fact
commerce works that are in the licensing of rights in
use of out- or the fact that they were never that they were never intended
collections of cultural heritage
of-commerce works that are in
intended for commercial use. It for commercial use
or that
institutions and thereby to allow the collections of cultural
is therefore necessary to
they have never been
the conclusion of agreements
heritage institutions and thereby provide for measures to
exploited commercially. It is
with cross-border effect in the
to allow the conclusion of
facilitate the
collective
therefore necessary to provide
internal market.
agreements with cross-border
licensing of rights in out-of-
for measures to facilitate
effect in the internal market.
commerce works that are
certain uses of the collective
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
permanently in the collections licensing of rights in out-of-
of cultural heritage institutions commerce works
and other
and thereby to allow the
subject-matter that are
conclusion of agreements with permanently in the collections
cross-border effect in the
of cultural heritage institutions
.
internal market.
, and thereby to allow the
conclusion of agreements with
cross-border effect in the
internal market.
47.
(22a) Several Member States
(22a) Legal mechanisms
have already adopted extended
should therefore exist in all
collective licencing regimes,
Member States allowing for
legal mandates or legal
licences issued by relevant
presumptions facilitating the
and sufficiently
licencing of out-of-commerce
representative collective
works. However considering
management organisations to
the variety of works and other
cultural heritage institutions,
subject-matter in the
for certain uses of out-of-
collections of cultural heritage
commerce works and other
institutions and the variance
subject matter, to also apply
between collective
to the rights of rightholders
management practices across
that have not mandated a
Member States and sectors of
representative collective
cultural production, such
management organisation in
measures may not provide a
that regard. It should be
solution in all cases, for
legally possible for those
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
example, because there is no
licences to cover all territories
practice of collective
of the Union.
management for a certain type
of work or other subject
(22b) An adapted legal
matter. In such particular
framework applicable to
instances, it is therefore
collective licensing may not
necessary to allow cultural
provide a solution for all the
heritage institutions to make
cases where cultural heritage
out-of-commerce works held in
institutions encounter
their permanent collection
difficulties in obtaining all the
available online under an
necessary authorisations of
exception to copyright and
right holders for the use of
related rights. While it is
out-of-commerce works and
essential to harmonise the
other subject-matter, for
scope of the new mandatory
example, because there is no
exception in order to allow
practice of collective
cross-border uses of out-of-
management for a certain
commerce works, Member
type of works or other
States should nevertheless be
subject-matter or because the
allowed to use or continue to
relevant collective
use extended collective
management organisation is
licencing arrangements
not broadly representative for
concluded with cultural
the category of the right
heritage institutions at
holders and of the rights
national level for categories of
concerned. In such particular
works that are permanently in
instances, it should be
the collections of cultural
possible for cultural heritage
institutions to make out-of-
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
heritage institutions The lack
commerce works and other
of agreement on the conditions
subject-matter that are
of the licence should not be
permanently in their
interpreted as a lack of
collection available online in
availability of licensing-based
all territories of the Union
solutions. Any uses under this
under a harmonised
exception should be subject to
exception or limitation to
the same opt-out and publicity
copyright and related rights.
requirements as uses
It is important that uses
authorised by a licensing
under that exception or
mechanism. In order to ensure
limitation only take place
that the exception only applies
when certain conditions,
when certain conditions are
notably as regards the
fulfilled and to provide legal
availability of licensing
certainty, Member States
solutions, are fulfilled. The
should determine, in
lack of agreement on the
consultation with rightholders,
conditions of the licence
collective management
should not be interpreted as a
organisations and cultural
lack of availability of
heritage organisations, and at
licensing-based solutions.
appropriate intervals of time,
for which sectors and which
types of works appropriate
licence-based solutions are not
available, in which case the
exception should apply.
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
48.
(23) Member States should,
(23) Member States should,
(23) Member States should,
(23) Member States should,
within the framework provided within the framework provided within the framework provided within the framework provided
for in this Directive, have
for in this Directive, have
for in this Directive, have
for in this Directive, have
flexibility in choosing the
flexibility in choosing the
flexibility in choosing the
flexibility in choosing the
specific type of mechanism
specific type of mechanism
specific type of mechanism
,
specific type of
licensing
allowing for licences for out-of- allowing for licences for out-of-
such as extended collective
mechanism, such as extended
commerce works to extend to
commerce works to extend to
licensing or presumption of
collective licensing or
the rights of rightholders that
the rights of rightholders that
representation, allowing for
presumption
s of representation,
are not represented by the
are not represented by the
licences for out-of-commerce
that they put in place for the
collective management
relevant collective management works to extend to the rights of
use of out-of-commerce works
organisation, in accordance to
organisation, in accordance to
rightholders that are
have not
and other subject matter by
their legal traditions, practices
with their legal traditions,
represented by the
mandated a cultural heritage institutions,
or circumstances. Such
practices or circumstances.
representative collective
in accordance with their legal
mechanisms can include
Such mechanisms can include
management organisation, in
traditions, practices or
extended collective licensing
extended collective licensing
accordance to
with their legal
circumstances. Member States
and presumptions of
and presumptions of
traditions, practices or
should also have flexibility in
representation.
representation.
circumstances. Such
determining the requirements
mechanisms can include
for collective management
extended collective licensing
organisations to be sufficiently
and presumptions of
representative, as long as this is
representation
Member States
based on a significant number
should also have flexibility in of rightholders in the relevant
determining the requirements type of works or other subject-
for collective management
matter who have given a
organisations to be
mandate allowing the licensing
sufficiently representative, as of the relevant type of use.
long as this is based on a
Member States should be free
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
significant number of
to establish specific rules
rightholders in the relevant
applicable to cases where more
type of works or other
than one collective
subject-matter who have
management organisation is
given a mandate allowing the representative for the relevant
licensing of the relevant type works or other subject matter,
of use. Member States should requiring for example joint
be free to establish specific
licences or an agreement
rules applicable to cases
between the relevant
where more than one
organisations.
collective management
organisation is representative
for the relevant works or
other subject matter,
requiring for example joint
licences or an agreement
between the relevant
organisations.
49.
(24) For the purpose of those (24) For the purpose of those
(24) For the purpose of those (24) For the purpose of those
licensing mechanisms, a
licensing mechanisms, a
licensing mechanisms, a
licensing mechanisms, a
rigorous and well-functioning
rigorous and well-functioning
rigorous and well-functioning
rigorous and well-functioning
collective management system collective management system
collective management system collective management system
is important. That system
is important
and should be
is important. That system
is important. That system
includes in particular rules of
encouraged by the Member
includes in particular rules of
includes in particular rules of
good governance, transparency
States. That system includes in good governance, transparency good governance, transparency
and reporting, as well as the
particular rules of good
and reporting, as well as the
and reporting, as well as the
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
regular, diligent and accurate
governance, transparency and
regular, diligent and accurate
regular, diligent and accurate
distribution and payment of
reporting, as well as the regular, distribution and payment of
distribution and payment of
amounts due to individual
diligent and accurate
amounts due to individual
amounts due to individual
rightholders, as provided for by distribution and payment of
rightholders, as provided for by rightholders, as provided for by
Directive 2014/26/EU.
amounts due to individual
Directive 2014/26/EU.
Directive 2014/26/EU.
Additional appropriate
rightholders, as provided for by Additional appropriate
(24a)
safeguards should be available
Directive 2014/26/EU.
safeguards should be available
Additional appropriate
for all rightholders, who should Additional appropriate
for all rightholders, who should safeguards should be available
be given the opportunity to
safeguards should be available
be given the opportunity to
for all rightholders, who should
exclude the application of such for all rightholders, who should exclude the application of such be given the opportunity to
mechanisms to their works or
be given the opportunity to
mechanisms
in relation to
all
exclude the application of
the
other subject-matter. Conditions exclude the application of such their works or other subject-
such
licensing mechanisms
attached to those mechanisms
licensing mechanisms
or of
matter
or to all licences, or in
and the exception or
should not affect their practical
such exceptions to their works
relation to particular works
limitation introduced by this
relevance for cultural heritage
or other subject-matter.
or other subject-matter or to Directive for the use of out-of-
commerce works
institutions.
Conditions attached to those
particular licences, at any
in relation to
mechanisms should not affect
time before or under the
all their works or other subject-
their practical relevance for
duration of the licence.
matter or
in relation to all
cultural heritage institutions.
Conditions attached to those
licences
or all uses under the
exception or limitation, or
mechanisms should not affect
in
their practical relevance for
relation to particular works or
cultural heritage institutions.
It other subject-matter or
in
is important that when a
relation to particular licences
rightholder excludes the
or uses under the exception or
application of such
limitation, at any time before
mechanisms to one or more of or under the duration of the
their works or other subject-
licence
or the uses under the
exception or limitation.
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
matter, the informed
Conditions attached to those
collective management
licensing mechanisms should
organisation does not
not affect their practical
continue to issue licences
relevance for cultural heritage
covering the relevant uses
institutions.
It is important that
and any ongoing uses are
when a rightholder excludes the
terminated within a
application of such mechanisms
reasonable period. Such
or of such exception or
exclusion by the rightholder
limitation to one or more of
should not affect their claim
their works or other subject-
to remuneration for the
matter,
the informed collective
actual use of the work or
management organisation does
other subject-matter.
not continue to issue licences
covering the relevant uses and
any ongoing uses are
terminated within a reasonable
period
, and, in the case they
take place under a collective
licence, that the informed
collective management
organisation does not
continue to issue licences
covering the relevant uses.
Such exclusion by the
rightholder
s should not affect
their claim
s to remuneration for
the actual use of the work or
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
other subject-matter
under the
licence.
50.
(24a) This Directive does not (24a) This Directive does not
affect the possibility for
affect the possibility for
Member States to determine
Member States to determine the
the allocation of legal
allocation of legal
responsibility for the
responsibility for the
compliance of the licensing
compliance of the licensing and
and the use of out-of-
the use of out-of-commerce
commerce works with the
works with the conditions set
conditions set out in this
out in this Directive and for the
Directive and for the
compliance of the parties with
compliance of the parties with the terms of those licenses.
the terms of those licenses.
51.
(25) Considering the variety (25) Considering the variety of (25) Considering the variety (25) Considering the variety
of works and other subject-
works and other subject-matter of works and other subject-
of works and other subject-
matter in the collections of
in the collections of cultural
matter in the collections of
matter in the collections of
cultural heritage institutions, it heritage institutions, it is
cultural heritage institutions, it cultural heritage institutions, it
is important that the licensing
important that the licensing
is important that the licensing
is important that the licensing
mechanisms introduced by this mechanisms introduced by this mechanisms introduced by this mechanisms
and the exception
Directive are available and can Directive are available and can Directive are available and can
or limitation introduced by this
be used in practice for different be used in practice for different be used in practice for different Directive are available and can
types of works and other
types of works and other
types of works and other
be used in practice for different
subject-matter, including
subject-matter, including
subject-matter, including
types of works and other
photographs, sound recordings photographs, sound recordings photographs,
software,
subject-matter, including
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
and audiovisual works. In order and audiovisual works. In order
phonograms, sound recordings photographs, software,
to reflect the specificities of
to reflect the specificities of
and audiovisual works.
and
phonograms,
audiovisual works
different categories of works
different categories of works
unique works of art,
and
unique works of art,
and other subject-matter as
and other subject-matter as
irrespective of whether they
irrespective of whether they
regards modes of publication
regards modes of publication
have ever been commercially have ever been commercially
and distribution and to facilitate and distribution and to facilitate
available. Never-in-commerce available. Never-in-commerce
the usability of those
the usability of those
works may include posters,
works may include posters,
mechanisms, specific
mechanisms,
the solutions on
leaflets, trench journals or
leaflets, trench journals or
requirements and procedures
the use of out-of-commerce
amateur audiovisual works,
amateur audiovisual works, but
may have to be established by
works introduced by this
but also unpublished works
also unpublished works or other
Member States for the practical
Directive, specific requirements
or other subject-matter,
subject-matter, without
application of those licensing
and procedures may have to be
without prejudice to other
prejudice to other applicable
mechanisms. It is appropriate
established by Member States
applicable legal constraints,
legal constraints, such as
that Member States consult
for the practical application of
such as national rules on
national rules on moral rights.
rightholders, users and
those licensing mechanisms. It
moral rights. When a work is When a work is available in any
collective management
is appropriate that Member
available in any of its
of its different versions, such as
organisations when doing so.
States consult rightholders,
different versions, such as
subsequent editions of literary
users
cultural heritage
subsequent editions of literary works and alternate cuts of
institutions and collective
works and alternate cuts of
cinematographic works, or in
management organisations
cinematographic works, or in any of its different
when doing so.
any of its different
manifestations, such as digital
manifestations, such as digital and printed formats of the same
and printed formats of the
work, this work or other
same work, this work or other subject-matter should not be
subject-matter should not be considered out of commerce.
considered out of commerce. Conversely, the commercial
Conversely, the commercial
availability of adaptations,
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
availability of adaptations,
including other language
including other language
versions or audiovisual
versions or audiovisual
adaptations of a literary work,
adaptations of a literary
should not preclude the
work, should not preclude the determination of the out-of-
determination of the out-of-
commerce status of a work in a
commerce status of a work in given language.
In order to
a given language. In order to
reflect the specificities of
reflect the specificities of
different types of works and
different categories
types of
other subject-matter as regards
works and other subject-matter modes of publication and
as regards modes of publication distribution and to facilitate the
and distribution and to facilitate usability of those mechanisms,
the usability of those
specific requirements and
mechanisms, specific
procedures may have to be
requirements and procedures
established for the practical
may have to be established by
application of those licensing
Member States for the practical mechanisms, such as a time
application of those licensing
period which needs to have
mechanisms
, such as a time
been elapsed since the first
period which needs to have
commercial availability of the
been elapsed since the first
work. It is appropriate that
commercial availability of the Member States consult
work. It is appropriate that
rightholders,
cultural heritage
Member States consult
institutionsusers and collective
rightholders, users and
management organisations
when doing so.
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
collective management
organisations when doing so.
52.
(25a) When determining
(25a) When determining
whether works and other
whether works and other
subject-matter are out of
subject-matter are out of
commerce, a reasonable
commerce, a reasonable effort
effort should be required to
should be required to assess
assess their availability to the their availability to the public in
public in the customary
the customary channels of
channels of commerce, taking commerce, taking into account
into account the
the characteristics of the
characteristics of the
particular work or set of works.
particular work or set of
Member States should be free
works. Member States should to determine the allocation of
be free to determine the
responsibilities for making the
allocation of responsibilities
reasonable effort. The
for making the reasonable
reasonable effort should not
effort. The reasonable effort
have to be repeated over time
should not have to be
but it should also take account
repeated over time but it
of any easily accessible
should also take account of
evidence of upcoming
any easily accessible evidence availability of works in the
of upcoming availability of
customary channels of
works in the customary
commerce. A work-by-work
channels of commerce. A
assessment should only be
work-by-work assessment
required when this is
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
should only be required when considered reasonable in view
this is considered reasonable of the availability of relevant
in view of the availability of
information, the likelihood of
relevant information, the
commercial availability and the
likelihood of commercial
expected transaction cost. The
availability and the expected verification of availability
transaction cost. The
should normally take place in
verification of availability
the Member State where the
should normally take place in cultural heritage institution is
the Member State where the
established, unless verification
cultural heritage institution is across borders is considered
established, unless
reasonable, for example when
verification across borders is there is easily available
considered reasonable, for
information that a literary work
example when there is easily
was first published in a given
available information that a
language version in another
literary work was first
Member State. In many cases
published in a given language the out-of-commerce status of a
version in another Member
set of works could be
State. In many cases the out-
determined through a
of-commerce status of a set of proportionate mechanism, such
works could be determined
as sampling. The limited
through a proportionate
availability of a work, such as
mechanism, such as sampling. its availability in second-hand
The limited availability of a
shops, or the theoretical
work, such as its availability
possibility to obtain a licence to
in second-hand shops, or the
a work should not be
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
theoretical possibility to
considered as availability to the
obtain a licence to a work
public in the customary
should not be considered as
channels of commerce.
availability to the public in
the customary channels of
commerce.
53.
(26) For reasons of
(26) For reasons of
(26) For reasons of
(26) For reasons of
international comity, the
international comity, the
international comity, the
international comity, the
licensing mechanisms for the
licensing mechanisms
and the
licensing mechanisms for the
licensing mechanism
and the
digitisation and dissemination
exception for the digitisation
digitisation and dissemination
exception or limitation
of out-of-commerce works
and dissemination of out-of-
of out-of-commerce works
provided for in this Directive
provided for in this Directive
commerce works provided for
provided for in this Directive
for the digitisation and
should not apply to works or
in this Directive should not
should not apply to works or
dissemination of out-of-
other subject-matter that are
apply to works or other subject- other subject-matter that are
commerce works provided for
first published or, in the
matter that are first published
first published or, in the
in this Directive should not
absence of publication, first
or, in the absence of
absence of publication, first
apply to sets of out-of-
broadcast in a third country or, publication, first broadcast in a broadcast in a third country or, commerce works or other
in the case of cinematographic
third country or, in the case of
in the case of cinematographic subject-matter when there is
or audiovisual works, to works cinematographic or audiovisual or audiovisual works, to works available evidence to presume
the producer of which has his
works, to works the producer of the producer of which has his
that they predominantly consist
headquarters or habitual
which has his headquarters or
headquarters or habitual
of works or other subject-matter
residence in a third country.
habitual residence in a third
residence in a third country.
of third countries, unless the
Those mechanisms should also country. Those mechanisms
Those mechanisms should also concerned collective
not apply to works or other
should also not apply to works
not apply to works or other
management organisation is
subject-matter of third country
or other subject-matter of third subject-matter of third country sufficiently representative for
nationals except when they are country nationals except when
nationals except when they are that third country, for example
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
first published or, in the
they are first published or, in
first published or, in the
via a representation agreement.
absence of publication, first
the absence of publication, first absence of publication, first
This assessment can be based
broadcast in the territory of a
broadcast in the territory of a
broadcast in the territory of a
on the evidence available
Member State or, in the case of Member State or, in the case of Member State or, in the case of following the reasonable effort
cinematographic or audiovisual cinematographic or audiovisual cinematographic or audiovisual to determine the out-of-
works, to works of which the
works, to works of which the
works, to works of which the
commerce status of the works,
producer's headquarters or
producer's headquarters or
producer's headquarters or
without the need to search for
habitual residence is in a
habitual residence is in a
habitual residence is in a
further evidence. A work-by-
Member State.
Member State.
Member State
sets of out-of-
work assessment of the origin
commerce works or other
of the out-of-commerce works
subject-matter when there is should only be required insofar
available evidence to presume as it is also required for the
that they predominantly
reasonable effort to determine
consist of works or other
their commercial availability.
subject-matter of third
countries, unless the
concerned collective
management organisation is
sufficiently representative for
that third country, for
example via a representation
agreement. This assessment
can be based on the evidence
available following the
reasonable effort to
determine the out-of-
commerce status of the
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
works, without the need to
search for further evidence. A
work-by-work assessment of
the origin of the out-of-
commerce works should only
be required insofar as it is
also required for the
reasonable effort to
determine their commercial
availability.
54.
(27) As mass digitisation
(27) As mass digitisation
(27) As mass
The
(27) The contracting cultural
projects can entail significant
projects can entail significant
contracting cultural heritage heritage institutions and
investments by cultural heritage investments by cultural heritage
institutions and collective
collective management
institutions, any licences
institutions, any licences
management organisations
organisations should remain
granted under the mechanisms
granted under the mechanisms
should remain free to agree
free to agree on the territorial
provided for in this Directive
provided for in this Directive
on the territorial scope of the scope of the licence, the licence
should not prevent them from
should not prevent them from
licence, the licence fee and the fee and the allowed uses. Uses
generating reasonable revenues generating reasonable revenues
allowed uses. Uses covered by covered by such licence should
in order to cover the costs of the in order to cover
covering the
such licence should not be for not be for profit making
licence and the costs of
costs of the licence and the
profit making purpose,
purpose, including when copies
digitising and disseminating the costs of digitising and
including when copies are
are distributed by the cultural
works and other subject-matter disseminating the works and
distributed by the cultural
heritage institution, such as in
covered by the licence.
other subject-matter covered by
heritage institution, such as in the case of promotional
the licence.
the case of promotional
material about an exhibition. At
material about an exhibition. the same time, as the
At the same time, as the
digitisation of the collections of
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
digitisation projects
of the
cultural heritage
institutions can
collections of cultural heritage entail significant investments,
institutions can entail
any licences granted under the
significant investments by
mechanisms provided for in this
cultural heritage institutions,
Directive should not prevent
any licences granted under the
cultural heritage institutions
mechanisms provided for in this from generating reasonable
Directive should not prevent
revenues for the purposes of
them
cultural heritage
covering the costs of the licence
institutions from generating
and the costs of digitising and
reasonable revenues in order to disseminating the works and
cover
for the purposes of
other subject-matter covered by
covering the costs of the
the licence.
licence and the costs of
digitising and disseminating the
works and other subject-matter
covered by the licence.
55.
(28) Information regarding
(28) Information regarding the (28) Information regarding
(28) Information regarding
the future and ongoing use of
future and ongoing use of out-
the future and ongoing use of
the future and ongoing use of
out-of-commerce works and
of-commerce works and other
out-of-commerce works and
out-of-commerce works and
other subject-matter by cultural subject-matter by cultural
other subject-matter by cultural other subject-matter by cultural
heritage institutions on the basis heritage institutions on the basis heritage institutions on the
heritage institutions on the basis
of the licensing mechanisms
of the licensing mechanisms
or basis of the licensing
of the licensing mechanisms
provided for in this Directive
of the exception provided for in mechanisms provided for in
provided for in this Directive
and the arrangements in place
this Directive and the
this Directive and the
and the arrangements in place
for all rightholders to exclude
arrangements in place for all
arrangements in place for all
for all rightholders to exclude
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
the application of licences to
rightholders to exclude the
rightholders to exclude the
the application of licences
or of
their works or other subject-
application of licences
or of the application of licences to their
the exception or limitation to
matter should be adequately
exception to their works or
works or other subject-matter
their works or other subject-
publicised. This is particularly
other subject-matter should be
should be adequately
matter should be adequately
important when uses take place adequately publicised. This is
publicised.
both before a
publicised both before a licence
across borders in the internal
particularly important when
licence is granted and during is granted and during the
market. It is therefore
uses take place across borders
the operation of the licence as operation of the licence
the use
appropriate to make provision
in the internal market. It is
appropriate. This is
under a licence or the
for the creation of a single
therefore appropriate to make
particularly important when
exception or limitation, as
publicly accessible online portal provision for the creation of a
uses take place across borders
appropriate. This is particularly
for the Union to make such
single publicly accessible
in the internal market. It is
important when uses take place
information available to the
online portal for the Union to
therefore appropriate to make
across borders in the internal
public for a reasonable period
make such information
provision for the creation of a
market. It is therefore
of time before the cross-border available to the public for a
single publicly accessible
appropriate to make provision
use takes place. Under
reasonable period of time
online portal for the Union to
for the creation of a single
Regulation (EU) No 386/2012
before the cross-border use
make such information
publicly accessible online
of the European Parliament and takes place. Under Regulation
available to the public for a
portal for the Union to make
of the Council11, the European
(EU) No 386/2012 of the
reasonable period of time
such information available to
Union Intellectual Property
European Parliament and of the before the cross-border use
the public for a reasonable
Office is entrusted with certain Council11, the European Union takes place.
This portal should period of time before the use
tasks and activities, financed by Intellectual Property Office is
facilitate the possibility for
takes place. This portal should
making use of its own
entrusted with certain tasks and
rightholders to exclude the
facilitate the possibility for
budgetary measures, aiming at
activities, financed by making
application of licences to their rightholders to exclude the
facilitating and supporting the
use of its own budgetary
works or other subject-
application of licences to their
activities of national authorities, measures, aiming at facilitating
matter. Under Regulation (EU) works or other subject-matter.
the private sector and Union
and supporting the activities of No 386/2012 of the European
Under Regulation (EU) No
institutions in the fight against, national authorities, the private
386/2012 of the European
link to page 50 link to page 50
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
including the prevention of,
sector and Union institutions in Parliament and of the Council
1, Parliament and of the Council
2,
infringement of intellectual
the fight against, including the
the European Union Intellectual the European Union Intellectual
property rights. It is therefore
prevention of, infringement of
Property Office is entrusted
Property Office is entrusted
appropriate to rely on that
intellectual property rights. It is with certain tasks and activities, with certain tasks and activities,
Office to establish and manage therefore appropriate to rely on financed by making use of its
financed by making use of its
the European portal making
that Office to establish and
own budgetary
own budgetary means, aiming
such information available.
manage the European portal
measures
means, aiming at
at facilitating and supporting
making such information
facilitating and supporting the
the activities of national
available.
activities of national
authorities, the private sector
authorities, the private sector
and Union institutions in the
and Union institutions in the
fight against, including the
fight against, including the
prevention of, infringement of
prevention of, infringement of
intellectual property rights. It is
intellectual property rights. It is therefore appropriate to rely on
therefore appropriate to rely on that Office to establish and
that Office to establish and
manage the European portal
manage the European portal
making such information
making such information
available. In addition to making
available.
In addition to
the information available
making the information
through the portal, further
available through the portal, appropriate publicity measures
1
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. 1–6).
2
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. 1–6).
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
further appropriate publicity may need to be taken on a case-
measures may need to be
by-case basis in order to
taken on a case-by-case basis increase the awareness of
in order to increase the
affected rightholders, for
awareness of affected
example through the use of
rightholders, for example
additional channels of
through the use of additional communication to reach a wider
channels of communication to public. The necessity, the
reach a wider public. The
nature and the geographic scope
necessity, the nature and the
of the additional publicity
geographic scope of the
measures should depend on the
additional publicity measures characteristics of the relevant
should depend on the
out-of-commerce works or
characteristics of the relevant other subject-matter, the terms
out-of-commerce works or
of the licences
or the type of
other subject-matter, the
use under the exception or
terms of the licences and the
limitation, and the existing
existing practices in Member practices in Member States.
States. Publicity measures
Publicity measures should be
should be effective without
effective without the need to
the need to inform each
inform each rightholder
rightholder individually.
individually.
(-28a) In order to ensure that
the licensing mechanisms
established by this Directive
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
for out-of-commerce works
are relevant and function
properly, that rightholders
are adequately protected, that
licences are properly
publicised and that legal
clarity is ensured with regard
to the representativeness of
collective management
organisations and the
categorisation of works,
Member States should foster
sector-specific stakeholder
dialogue.
56.
(28a) The measures
provided for in this Directive
to facilitate the collective
licensing of rights in out-of-
commerce works or other
subject-matter that are
permanently in the collections
of cultural heritage
institutions should be without
prejudice to the use of such
works or other subject-matter
under exceptions or
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
limitations provided for in
Union law or under other
licences with an extended
effect, where such licensing is
not based on the out-of-
commerce status of the
covered works or other
subject matter. These
measures should also be
without prejudice to national
mechanisms for the use of out
of commerce works based on
licences between collective
management organisation
and users other than cultural
heritage institutions.
57.
(28b) Mechanisms of
collective licensing with an
extended effect allow a
collective management
organisation to offer licences
as a collective licensing body
on behalf of rightholders
irrespective of whether they
have authorised the
organisation to do so. Systems
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
built on such mechanisms,
such as extended collective
licensing, legal mandates or
presumptions of
representation, are a well-
established practice in several
Member States and may be
used in different areas. A
functioning copyright
framework that works for all
parties requires the
availability of these
proportionate, legal
mechanisms for the licensing
of works. Member States
should therefore be able to
rely on solutions, allowing
relevant licensing
organisations, which are
owned or controlled by their
rightholder members (or
entities representing
rightholders) or organised on
a not for profit basis, to offer
licences covering potentially
large volumes of works or
other subject-matter for
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
certain types of use, and
distribute the revenue
received to rightholders.
58.
(28c) In the case of some
uses, together with the usually
large amount of works
involved, the transaction cost
of individual rights clearance
with every concerned
rightholder is prohibitively
high and without effective
collective licensing
mechanisms all the required
transactions in these areas to
enable the use of these works
or other subject matter are
unlikely to take place.
Extended collective licensing
and similar mechanisms have
made it possible to conclude
agreements in areas affected
by this market failure where
traditional collective licensing
does not provide an
exhaustive solution for
covering all works and other
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
subject-matter to be used.
These mechanisms serve as a
complement to collective
management based on
individual mandates, by
providing full legal certainty
to users. At the same time,
they provide a further
opportunity to right holders
to benefit from the legitimate
use of their works.
59.
(28d) Given the increasing
importance of the ability to
offer flexible licensing
solutions in the digital age,
and the increasing use of such
schemes in Member States, it
is beneficial to further clarify
in Union law the status of
licensing mechanisms
allowing collective
management organisations to
conclude licences, on a
voluntary basis, irrespective
of whether all rightholders
have authorised the
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
organisation to do so.
Member States should have
the ability to maintain and
introduce such schemes in
accordance with their legal
traditions, practices or
circumstances, subject to the
safeguards provided for in
this Directive and in full
respect of Union law and
their international obligations
related to copyright. These
schemes would only have
effect in the territory of the
Member State concerned,
unless otherwise provided for
in Union law. Member States
should have flexibility in
choosing the specific type of
mechanism allowing licences
for works or other subject-
matter to extend to the rights
of rightholders that have not
authorised the organisation
that concludes the agreement,
as long as it guarantees
sufficient protection of the
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
non-member rightholders.
Such mechanisms may
include extended collective
licensing, legal mandate and
presumptions of
representation. The
provisions of this Directive
concerning collective
licensing should not affect
existing possibilities of
Member States to apply
mandatory collective
management or other
collective licensing
mechanisms with an extended
effect, such as the one
included in Article 3 of
Directive 93/83/EEC.
60.
(28e) It is important that
such mechanisms are only
applied in well-defined areas
of uses, where obtaining
authorisations from
rightholders on an individual
basis is typically onerous and
impractical to a degree that
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
makes the required licensing
transaction, i.e. a licence that
covers all the involved
rightholders unlikely to occur
due to the nature of the use or
of the types of works
concerned. It is equally
important that the licensed
use neither affects adversely
the economic value of the
relevant rights nor deprives
rightholders of significant
commercial benefits.
Moreover, Member States
should ensure that
appropriate safeguards are in
place to protect the legitimate
interests of rightholders that
are not represented by the
organisation offering the
licence.
61.
(28f) Specifically, to justify
the extended effect of the
mechanisms, the organisation
should be, on the basis of
authorisations from
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
rightholders, sufficiently
representative of the types of
works or other subject-matter
and of the rights which are
the subject of the licence. To
ensure legal certainty and
confidence in the mechanisms
Member States may
determine the allocation of
legal responsibility for uses
authorised by the licence
agreement. Equal treatment
should be guaranteed to all
rightholders whose works are
exploited under the licence as
regards, notably, access to
information on the licensing
and the distribution of
remuneration. Publicity
measures should be effective
throughout the duration of
the licence without the need
to inform each rightholder
individually. In order to
ensure that rightholders can
easily retain control of their
works, and prevent any uses
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
of their works that would be
prejudicial to their interests,
rightholders must be given an
effective opportunity to
exclude the application of
such mechanisms to their
works or other subject-matter
for all uses and works or
other subject-matter, or for
specific uses and works or
other subject-matter. In such
cases, any ongoing uses
should be terminated within a
reasonable period. Member
States may also decide that
additional measures are
appropriate to protect
rightholders.
62.
(28g) Member States should
ensure that the purpose and
scope of any licence granted
as a result of these
mechanisms, as well as the
possible users, should always
be carefully and clearly
defined in national legislation
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
or, if the underlying
legislation is a general
provision, in the licensing
practices applied as a result
of such general provisions, or
in the licences granted. The
ability to operate a licence
under these mechanisms
should also be limited to
organisations which are
either owned or controlled by
their right holder members or
which operate on a not for
profit basis, regulated by
national law implementing
Directive 2014/26/EU.
63.
(28h) Given the different
traditions and experiences
with extended collective
licensing across Member
States and their applicability
to rightholders irrespective of
their nationality or their
Member State of residence, it
is important to ensure
transparency and dialogue at
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
Union level about the
practical functioning of these
mechanisms, including as
regards the effectiveness of
safeguards for rightholders,
their usability and the
potential need to lay down
rules to give such schemes
cross-border effect within the
internal market. To ensure
transparency, information
about the use of such
mechanisms under this
Directive should be regularly
published by the Commission.
Member States that have
introduced such mechanisms
should therefore inform the
Commission about relevant
national legislation and its
application in practice,
including scopes and types of
licensing introduced on the
basis of general legislation,
the scale of licensing and the
collective management
organisations involved. Such
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
information should be
discussed with Member
States in the contact
committee referred to in
Article 12(3) of Directive
2001/29)
On
/EC. The
Commission should publish a
report by 31 December 2020
on the use of such
mechanisms in the Union and
their impact on licensing and
rightholders.
64.
(28a) In order to ensure that
[EP proposal covered as recital
the licensing mechanisms
-28a in line 55]
established for out-of-
commerce works are relevant
and function properly, that
rightholders are adequately
protected under those
mechanisms, that licences are
properly publicised and that
legal clarity is ensured with
regard to the
representativeness of collective
management organisations
and the categorisation of
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
works, Member States should
foster sector-specific
stakeholder dialogue.
65.
(29) On-demand services
(29) On-demand services
(29)
Video-on-demand
(29) Video-on-demand
have the potential to play a
have the potential to play a
services have the potential to
services have the potential to
decisive role in the
decisive role in the
play a decisive role in the
play a decisive role in the
dissemination of European
dissemination of European
dissemination of European
dissemination of audiovisual
works across the European
works across the European
audiovisual works across the
works across the European
Union. However, agreements
Union. However, agreements
European Union. However,
Union. However, the
on the online exploitation of
on the online exploitation of
agreements
the availability of availability of those works, in
such works may face
such works may face
those works, in particular
particular European works, on
difficulties related to the
difficulties related to the
European works, on video-
video-on-demand services
licensing of rights. Such issues licensing of rights. Such issues
on-demand services remains
remains limited. Agreements on
may, for instance, appear when may, for instance, appear when
limited. Agreements on the
the online exploitation of such
the holder of the rights for a
the holder of the rights for a
online exploitation of such
works may be difficult to
given territory is not interested given territory is not interested works may
be difficult to
conclude due to issues related
in the online exploitation of the in the online exploitation of the
conclude due to issues face
to the licensing of rights. Such
work or where there are issues
work or where there are issues
difficulties related to the
issues may, for instance, appear
linked to the windows of
linked to the windows of
licensing of rights. Such issues when the holder of the rights
exploitation.
exploitation.
may,
for instance, appear when for a given territory has low
the holder of the rights for a
economic incentive to exploit a
given territory is not interested work online and does not
in the
has low economic
license or holds back the online
incentive to exploit a work
rights, which can lead to the
online exploitation of the work unavailability of audiovisual
or where there are issues
and
works on video-on-demand
does not license or holds back services. Other issues may be
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
the online rights, which can
linked to the windows of
lead to the unavailability of
exploitation.
audiovisual works on video-
on-demand services. Other
issues may be linked to the
windows of exploitation.
66.
(30) To facilitate the
(30) To facilitate the licensing (30) To facilitate the
(30) To facilitate the
licensing of rights in
of rights in audiovisual works
licensing of rights in
licensing of rights in
audiovisual works to video-on-
to video-on-demand platforms, audiovisual works to video-on-
audiovisual works to video-on-
demand platforms, this
this Directive requires Member demand platforms
services, this demand services, this Directive
Directive requires Member
States to
should set up a
Directive requires Member
requires Member States to
States to set up a negotiation
negotiation mechanism,
States to set up
provide for a
provide for a negotiation
mechanism allowing parties
managed by an existing or
negotiation mechanism
mechanism
allowing parties
willing to conclude an
newly established national
allowing parties willing to
willing to conclude an
agreement to rely on the
body, allowing parties willing
conclude an agreement to rely
agreement to rely on the
assistance of an impartial body. to conclude an agreement to
on the assistance of an impartial assistance of an impartial body
The body should meet with the rely on the assistance of an
body. The body
or of one or
or of one or more mediators.
parties and help with the
impartial body.
The
more mediators. For that
For that purpose, Member
negotiations by providing
participation in this
purpose, Member States may States may either create a new
professional and external
negotiation mechanism and
either create a new body or
body or rely on an existing one
advice. Against that
the subsequent conclusion of
rely on an existing one that
that fulfils the conditions
background, Member States
agreements should be
fulfils the conditions
established by this Directive.
should decide on the conditions
voluntary. Where a negotiation established by this Directive.
Member States may designate
of the functioning of the
involves parties from different Member States may designate one or more competent bodies
negotiation mechanism,
Member States, those parties
one or more competent bodies or mediators. The body or the
including the timing and
should agree beforehand on
or mediators. The body or the mediators should meet with the
duration of the assistance to
the competent Member State,
mediators should meet with the parties and help with the
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
negotiations and the bearing of
should they decide to rely on
parties and help with the
negotiations by providing
the costs. Member States should
the negotiation mechanism.
negotiations by providing
professional
, impartial and
ensure that administrative and
The body should meet with the professional and external
external advice.
Where a
financial burdens remain
parties and help with the
advice.
The body or the
negotiation involves parties
proportionate to guarantee the
negotiations by providing
mediators could meet with the from different Member
efficiency of the negotiation
professional,
impartial and
parties to facilitate the start of States, those parties should
forum.
external advice. Against that
negotiations or in the course
agree beforehand on the
background, Member States
of the negotiations to facilitate competent Member State,
should decide on the conditions
the conclusion of an
should they decide to rely on
of the functioning of the
agreement. The use of and the the negotiation mechanism.
negotiation mechanism,
participation in the
The body or the mediators
including the timing and
negotiation mechanism
could meet with the parties to
duration of the assistance to
should remain voluntary and facilitate the start of
negotiations and the bearing
should not affect the parties'
negotiations or in the course of
division of the
any costs
contractual freedom. Against the negotiations to facilitate the
arising, and the composition of that background, Member
conclusion of an agreement.
such bodies. Member States
States should
be free to decide
The participation in this
should ensure that
on the conditions of
negotiation mechanism and
administrative and financial
the
concrete functioning of the
the subsequent conclusion of
burdens remain proportionate to negotiation mechanism,
agreements should be
guarantee the efficiency of the
including the timing and
voluntary and should not affect
negotiation forum.
duration of the assistance to
the parties' contractual freedom.
negotiations and the bearing of Against that background,
the costs. Member States should Member States should be free
ensure that administrative and
to decide on the concrete
financial burdens remain
functioning of the negotiation
proportionate to guarantee the
mechanism, including the
EP TEXT
COMMISSION PROPOSAL
COUNCIL TEXT
Row
P8_TA-PROV(2018)0337
POSSIBLE COMPROMISE
COM(2016)593
9134/18
SOLUTION
A8-0245/2018
efficiency of the negotiation
timing and duration of the
forum
mechanism.
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
mechanism.