Council of the
European Union
Brussels, 26 September 2018
(OR. en)
12513/18
Interinstitutional File:
2016/0280(COD)
PI 130
CODEC 1538
EDUC 334
COMPET 623
AUDIO 69
CULT 102
DIGIT 182
TELECOM 305
NOTE
From:
General Secretariat of the Council
To:
Delegations
No. prev. doc.:
9134/18, 11520/18
No. Cion doc.:
12254/16
Subject:
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL on copyright in the Digital Single Market
- Preparation for the trilogue
- 4-column document
Delegations will find attached the first version of the 4-column table on the above proposal, setting
out the text of the Commission proposal (12254/16) in the first column, the EP position as resulting
from the vote on 12 September 2018 (see 11520/18) in the second column, and the Council
negotiating mandate as approved by Coreper on 25 May 2018 (9134/18) in the third column.
12513/18
BM/np
1
ECOMP.3.B
EN
ANNEX
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)
PART 1: CITATIONS AND RECITALS
Note:
Differences between the EP's position and the Commission's proposal are highlighted in Bold/Italics. Deletions are marked with strikethrough.
Differences between the Council's position and the Commission's proposal are highlighted in Bold/Underlined.
Deletions are marked with strikethrough.
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
1.
Proposal for a
Proposal for a
Proposal for a
DIRECTIVE OF THE
DIRECTIVE OF THE
DIRECTIVE OF THE
EUROPEAN PARLIAMENT
EUROPEAN PARLIAMENT
EUROPEAN PARLIAMENT
AND OF THE COUNCIL
AND OF THE COUNCIL
AND OF THE COUNCIL
on copyright in the Digital Single on copyright in the Digital Single on copyright in the Digital Single
Market
Market
Market
(Text with EEA relevance)
(Text with EEA relevance)
(Text with EEA relevance)
12513/18
BM/np
2
ANNEX
ECOMP.3.B
EN
link to page 3 link to page 3
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
2.
THE EUROPEAN
THE EUROPEAN
THE EUROPEAN
PARLIAMENT AND THE
PARLIAMENT AND THE
PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN COUNCIL OF THE EUROPEAN COUNCIL OF THE EUROPEAN
UNION,
UNION,
UNION,
3.
Having regard to the Treaty on
Having regard to the Treaty on
Having regard to the Treaty on
the Functioning of the European
the Functioning of the European
the Functioning of the European
Union, and in particular
Union, and in particular
Union, and in particular
Article 114 thereof,
Article 114 thereof,
Article
Articles 53(1), 62 and
114 thereof
4.
Having regard to the proposal
Having regard to the proposal
Having regard to the proposal
from the European Commission,
from the European Commission,
from the European Commission,
5.
After transmission of the draft
After transmission of the draft
After transmission of the draft
legislative act to the national
legislative act to the national
legislative act to the national
parliaments,
parliaments,
parliaments,
6.
Having regard to the opinion of
Having regard to the opinion of
Having regard to the opinion of
the European Economic and
the European Economic and
the European Economic and
Social Committee1,
Social Committee1,
Social Committee
1,
7.
Having regard to the opinion of
Having regard to the opinion of
Having regard to the opinion of
the Committee of the Regions2,
the Committee of the Regions2,
the Committee of the Regions
2,
1
OJ C , , p. .
2
OJ C , , p. .
12513/18
BM/np
3
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
8.
Acting in accordance with the
Acting in accordance with the
Acting in accordance with the
ordinary legislative procedure,
ordinary legislative procedure,
ordinary legislative procedure,
9.
Whereas:
Whereas:
Whereas:
10.
(1) The Treaty provides for the (1) The Treaty provides for the (1) The Treaty provides for the
establishment of an internal
establishment of an internal
establishment of an internal
market and the institution of a
market and the institution of a
market and the institution of a
system ensuring that competition system ensuring that competition system ensuring that competition
in the internal market is not
in the internal market is not
in the internal market is not
distorted. Harmonisation of the
distorted. Harmonisation of the
distorted. Harmonisation of the
laws of the Member States on
laws of the Member States on
laws of the Member States on
copyright and related rights
copyright and related rights
copyright and related rights
should contribute further to the
should contribute further to the
should contribute further to the
achievement of those objectives.
achievement of those objectives.
achievement of those objectives.
11.
(2) The directives which have
(2) The directives which have
(2) The directives
Directives
been adopted in the area of
been adopted in the area of
which have been adopted in the
copyright and related rights
copyright and related rights
area of copyright and related
provide for a high level of
contribute to the functioning of
rights provide for a high level of
protection for rightholders and
the internal market, provide for a protection for rightholders and
create a framework wherein the
high level of protection for
create a framework wherein the
exploitation of works and other
rightholders
, facilitate the
exploitation of works and other
protected subject-matter can take
clearance of rights and create a
protected subject-matter can take
place. This harmonised legal
framework wherein the
place. This harmonised legal
framework contributes to the
exploitation of works and other
framework contributes to the
good functioning of the internal
protected subject-matter can take good functioning of the internal
market; it stimulates innovation,
place. This harmonised legal
market; it stimulates innovation,
creativity, investment and
framework contributes to the
creativity, investment and
12513/18
BM/np
4
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
production of new content, also in good functioning of the
a truly
production of new content, also in
the digital environment. The
integrated internal market; it
the digital environment. The
protection provided by this legal
stimulates innovation, creativity, protection provided by this legal
framework also contributes to the investment and production of new framework also contributes to the
Union's objective of respecting
content, also in the digital
Union's objective of respecting
and promoting cultural diversity
environment
, with a view to
and promoting cultural diversity
while at the same time bringing
avoiding fragmentation of the
while at the same time bringing
the European common cultural
internal market. The protection
the European common cultural
heritage to the fore. Article
provided by this legal framework heritage to the fore. Article
167(4) of the Treaty on the
also contributes to the Union's
167(4) of the Treaty on the
Functioning of the European
objective of respecting and
Functioning of the European
Union requires the Union to take promoting cultural diversity while Union requires the Union to take
cultural aspects into account in its at the same time bringing the
cultural aspects into account in its
action.
European common cultural
action.
heritage to the fore. Article
167(4) of the Treaty on the
Functioning of the European
Union requires the Union to take
cultural aspects into account in its
action.
12.
(3) Rapid technological
(3) Rapid technological
(3) Rapid technological
developments continue to
developments continue to
developments continue to
transform the way works and
transform the way works and
transform the way works and
other subject-matter are created,
other subject-matter are created,
other subject-matter are created,
produced, distributed and
produced, distributed and
produced, distributed and
exploited. New business models
exploited
, and relevant
exploited. New business models
and new actors continue to
legislation needs to be future
and new actors continue to
emerge. The objectives and the
proof so as not to restrict
emerge. The objectives and the
12513/18
BM/np
5
ANNEX
ECOMP.3.B
EN
link to page 6
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
principles laid down by the Union
technological development. New principles laid down by the Union
copyright framework remain
business models and new actors
copyright framework remain
sound. However, legal uncertainty continue to emerge. The
sound. However, legal uncertainty
remains, for both rightholders and objectives and the principles laid remains, for both rightholders and
users, as regards certain uses,
down by the Union copyright
users, as regards certain uses,
including cross-border uses, of
framework remain sound.
including cross-border uses, of
works and other subject-matter in However, legal uncertainty
works and other subject-matter in
the digital environment. As set
remains, for both rightholders and the digital environment. As set
out in the Communication of the
users, as regards certain uses,
out in the Communication of the
Commission entitled ‘Towards a
including cross-border uses, of
Commission entitled ‘Towards a
modern, more European
works and other subject-matter in modern, more European
copyright framework’3, in some
the digital environment. As set
copyright framework’
3, in some
areas it is necessary to adapt and
out in the Communication of the
areas it is necessary to adapt and
supplement the current Union
Commission entitled 'Towards a
supplement the current Union
copyright framework. This
modern, more European
copyright framework.
keeping a
Directive provides for rules to
copyright framework'3
, in some
high level of protection of
adapt certain exceptions and
areas it is necessary to adapt and
copyright and related rights.
limitations to digital and cross-
supplement the current Union
This Directive provides for rules
border environments, as well as
copyright framework. This
to adapt certain exceptions and
measures to facilitate certain
Directive provides for rules to
limitations to digital and cross-
licensing practices as regards the adapt certain exceptions and
border environments, as well as
dissemination of out-of-
limitations to digital and cross-
measures to facilitate certain
commerce works and the online
border environments, as well as
licensing practices as regards the
availability of audiovisual works measures to facilitate certain
dissemination of out-of-
on video-on-demand platforms
licensing practices as regards the commerce works and the online
with a view to ensuring wider
dissemination of out-of-
availability of audiovisual works
3
COM(2015) 626 final.
12513/18
BM/np
6
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
access to content. In order to
commerce works and the online
on video-on-demand platforms
achieve a well-functioning
availability of audiovisual works with a view to ensuring wider
marketplace for copyright, there
on video-on-demand platforms
access to content. In order to
should also be rules on rights in
with a view to ensuring wider
achieve a well-functioning
publications, on the use of works access to content. In order to
marketplace for copyright, there
and other subject-matter by online achieve a well-functioning
and
should also be rules on rights in
service providers storing and
fair marketplace for copyright,
publications, on the use of works
giving access to user uploaded
there should also be rules on
and other subject-matter by online
content and on the transparency
rights in publications, on
the
service providers storing and
of authors' and performers'
exercise and enforcement of the giving access to user uploaded
contracts.
use of works and other subject-
content and on the transparency
matter by
on online service
of authors' and performers'
providers storing and giving
contracts.
access to user uploaded content
providers’ platforms and on the
transparency of authors' and
performers' contracts
and of the
accounting linked with the
exploitation of protected works
in accordance with those
contracts.
13.
(4) This Directive is based
(4) This Directive is based upon, (4) This Directive is based
upon, and complements, the rules and complements, the rules laid
upon, and complements, the rules
laid down in the Directives
down in the Directives currently
laid down in the Directives
currently in force in this area, in
in force in this area, in particular
currently in force in this area, in
particular Directive 96/9/EC of
Directive 96/9/EC of the
particular Directive 96/9/EC of
12513/18
BM/np
7
ANNEX
ECOMP.3.B
EN
link to page 8 link to page 8 link to page 8 link to page 8 link to page 8 link to page 8
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
the European Parliament and of
European Parliament and of the
the European Parliament and of
the Council4, Directive
Council4, Directive
2000/31/EC
the Council4
4, Directive
2001/29/EC of the European
of the European Parliament and 2000/31/EC of the European
Parliament and of the Council6,
of the Council5, Directive
Parliament and of the Council5,
Directive 2006/115/EC of the
2001/29/EC of the European
Directive 2001/29/EC of the
European Parliament and of the
Parliament and of the Council6 ,
European Parliament and of the
Council7, Directive 2009/24/EC
Directive 2006/115/EC of the
Council
6, Directive 2006/115/EC
of the European Parliament and of European Parliament and of the
of the European Parliament and of
the Council8, Directive
Council7, Directive 2009/24/EC
the Counci
l7, Directive
2012/28/EU of the European
of the European Parliament and of 2009/24/EC of the European
Parliament and of the Council9
the Council8, Directive
Parliament and of the Council
8,
and Directive 2014/26/EU of the 2012/28/EU of the European
Directive 2012/28/EU of the
European Parliament and of the
Parliament and of the Council9
European Parliament and of the
Council10.
and Directive 2014/26/EU of the Council
9 and Directive
4
Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 77, 27.3.1996, p. 20–28).
5
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in
particular electronic commerce, in the Internal Market (OJ L 178, 17.07.2000, p. 1–16).
6
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in
the information society (OJ L 167, 22.6.2001, p. 10–19).
7
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to
copyright in the field of intellectual property (OJ L 376, 27.12.2006, p. 28–35).
8
Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (OJ L 111,
5.5.2009, p. 16–22).
9
Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works (OJ L 299,
27.10.2012, p. 5–12).
12513/18
BM/np
8
ANNEX
ECOMP.3.B
EN
link to page 9
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
European Parliament and of the
2014/26/EU of the European
Council10 .
Parliament and of the Council
10.
14.
(5) In the fields of research,
(5) In the fields of research,
(5) In the fields of research,
education and preservation of
innovation, education and
education and preservation of
cultural heritage, digital
preservation of cultural heritage,
cultural heritage, digital
technologies permit new types of digital technologies permit new
technologies permit new types of
uses that are not clearly covered
types of uses that are not clearly
uses that are not clearly covered
by the current Union rules on
covered by the current Union
by the current Union rules on
exceptions and limitations. In
rules on exceptions and
exceptions and limitations. In
addition, the optional nature of
limitations. In addition, the
addition, the optional nature of
exceptions and limitations
optional nature of exceptions and exceptions and limitations
provided for in Directives
limitations provided for in
provided for in Directives
2001/29/EC, 96/9/EC and
Directives 2001/29/EC, 96/9/EC
2001/29/EC, 96/9/EC and
2009/24/EC in these fields may
and 2009/24/EC in these fields
2009/24/EC in these fields may
negatively impact the functioning may negatively impact the
negatively impact the functioning
of the internal market. This is
functioning of the internal market. of the internal market. This is
particularly relevant as regards
This is particularly relevant as
particularly relevant as regards
cross-border uses, which are
regards cross-border uses, which cross-border uses, which are
becoming increasingly important are becoming increasingly
becoming increasingly important
in the digital environment.
important in the digital
in the digital environment.
Therefore, the existing exceptions environment. Therefore, the
Therefore, the existing exceptions
and limitations in Union law that existing exceptions and
and limitations in Union law that
are relevant for scientific
limitations in Union law that are
are relevant for scientific
research, teaching and
relevant for
innovation, scientific research, teaching and
10
Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright and related
rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ L 84, 20.3.2014, p. 72–98).
12513/18
BM/np
9
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
preservation of cultural heritage
research, teaching and
preservation of cultural heritage
should be reassessed in the light
preservation of cultural heritage
should be reassessed in the light
of those new uses. Mandatory
should be reassessed in the light
of those new uses. Mandatory
exceptions or limitations for uses of those new uses. Mandatory
exceptions or limitations for uses
of text and data mining
exceptions or limitations for uses of text and data mining
technologies in the field of
of text and data mining
technologies in the field of
scientific research, illustration for technologies in the field of
scientific research, illustration for
teaching in the digital
innovation and scientific
teaching in the digital
environment and for preservation research, illustration for teaching environment and for preservation
of cultural heritage should be
in the digital environment and for of cultural heritage should be
introduced. For uses not covered
preservation of cultural heritage
introduced. For uses not covered
by the exceptions or the limitation should be introduced. For uses
by the exceptions or the limitation
provided for in this Directive, the not covered by the exceptions or
provided for in this Directive,
exceptions and limitations
the limitation provided for in this the
The exceptions and limitations
existing in Union law should
Directive, the exceptions and
existing in Union law should
continue to apply. Directives
limitations existing in Union law continue to apply
, including to
96/9/EC and 2001/29/EC should
should continue to apply.
text and data mining, education
be adapted.
Therefore, existing well-
and preservation activities, as
functioning exceptions in those
long as they do not limit the
fields should be allowed to
scope of the mandatory
continue to be available in
exceptions laid down in this
Member States, as long as they
Directive and on condition that
do not restrict the scope of the
their application does not
exceptions or limitations
adversely affect nor circumvent
provided for in this Directive.
the mandatory rules set out in
Directives 96/9/EC and
this Directive. Directives
2001/29/EC should be adapted.
96/9/EC and 2001/29/EC should
be adapted.
12513/18
BM/np
10
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
15.
(6) The exceptions and the
(6) The exceptions and the
(6) The exceptions and the
limitation set out in this Directive limitation
limitations set out in
limitation set out
provided for in
seek to achieve a fair balance
this Directive seek to achieve a
this Directive seek to achieve a
between the rights and interests of fair balance between the rights
fair balance between the rights
authors and other rightholders on and interests of authors and other and interests of authors and other
the one hand, and of users on the rightholders on the one hand, and rightholders on the one hand, and
other. They can be applied only in of users on the other. They can be of users on the other. They can be
certain special cases which do not applied only in certain special
applied only in certain special
conflict with the normal
cases which do not conflict with
cases which do not conflict with
exploitation of the works or other the normal exploitation of the
the normal exploitation of the
subject-matter and do not
works or other subject-matter and works or other subject-matter and
unreasonably prejudice the
do not unreasonably prejudice the do not unreasonably prejudice the
legitimate interests of the
legitimate interests of the
legitimate interests of the
rightholders.
rightholders.
rightholders.
16.
(7) The protection of
(7) The protection of
(7) The protection of
technological measures
technological measures
technological measures
established in Directive
established in Directive
established in Directive
2001/29/EC remains essential to
2001/29/EC remains essential to
2001/29/EC remains essential to
ensure the protection and the
ensure the protection and the
ensure the protection and the
effective exercise of the rights
effective exercise of the rights
effective exercise of the rights
granted to authors and to other
granted to authors and to other
granted to authors and to other
rightholders under Union law.
rightholders under Union law.
rightholders under Union law.
This protection should be
This protection should be
This protection should be
maintained while ensuring that
maintained while ensuring that
maintained while ensuring that
the use of technological measures the use of technological measures the use of technological measures
does not prevent the enjoyment of does not prevent the enjoyment of does not prevent the enjoyment of
the exceptions and the limitation
the exceptions and the limitation
the exceptions and the limitation
12513/18
BM/np
11
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
established in this Directive,
established in this Directive,
established in this Directive,
which are particularly relevant in which are particularly relevant in which are particularly relevant in
the online environment.
the online environment.
the online environment.
Rightholders should have the
Rightholders should have the
Rightholders should have the
opportunity to ensure this through opportunity to ensure this through opportunity to ensure this through
voluntary measures. They should voluntary measures. They should voluntary measures. They should
remain free to choose the format
remain free to choose the format
remain free to choose the format
and the modalities to provide the and the modalities to provide the and the modalities to
beneficiaries of the exceptions
beneficiaries of the exceptions
provide
appropriate means of
and the limitation established in
and the limitation established in
enabling the beneficiaries of the
this Directive with the means to
this Directive with the means to
exceptions and the limitation
benefit from them provided that
benefit from them provided that
established in this Directive with
such means are appropriate. In the such means are appropriate. In the the means to benefit from them
absence of voluntary measures,
absence of voluntary measures,
provided that such means are
Member States should take
Member States should take
appropriate. In the absence of
appropriate measures in
appropriate measures in
voluntary measures, Member
accordance with the first
accordance with the first
States should take appropriate
subparagraph of Article 6(4) of
subparagraph of Article 6(4) of
measures in accordance with the
Directive 2001/29/EC.
Directive 2001/29/EC.
first subparagraph of Article 6(4)
of Directive 2001/29/EC
,
including where works and
other subject-matter are made
available through on-demand
services.
17.
(8) New technologies enable
(8) New technologies enable the (8) New technologies enable
the automated computational
automated computational analysis the automated computational
analysis of information in digital of information in digital form,
analysis of information in digital
form, such as text, sounds, images such as text, sounds, images or
form, such as text, sounds, images
12513/18
BM/np
12
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
or data, generally known as text
data, generally known as text and or data, generally known as text
and data mining. Those
data mining. Those technologies
and data mining. Those
technologies allow researchers to allow researchers to process
Text technologies allow researchers to
process large amounts of
and data mining allows the
process large amounts of
information to gain new
reading and analysis of large
information
with a view to
knowledge and discover new
amounts of
digitally stored
gain
gaining new knowledge and
trends. Whilst text and data
information to gain new
discover
discovering new trends.
mining technologies are prevalent knowledge and discover new
Whilst text and data mining
across the digital economy, there trends. Whilst text and data
technologies are prevalent across
is widespread acknowledgment
mining technologies are prevalent the digital economy, there is
that text and data mining can in
across the digital economy, there widespread acknowledgment that
particular benefit the research
is widespread acknowledgment
text and data mining can in
community and in so doing
that text and data mining can in
particular benefit the research
encourage innovation. However,
particular benefit the research
community and in so doing
in the Union, research
community and in so doing
encourage
support innovation.
organisations such as universities encourage innovation. However,
However, in the Union,
These
and research institutes are
in the Union, research
technologies benefit research
confronted with legal uncertainty organisations such as universities organisations such as universities
as to the extent to which they can and research institutes are
and
well as cultural heritage
perform text and data mining of
confronted with legal uncertainty
institutions, which may also
content. In certain instances, text as to the extent to which they can
carry out research institutes
in
and data mining may involve acts perform text and data mining of
the context of their main
protected by copyright and/or by content. In certain instances, text
activities. However, in the
the
sui generis database right,
and data mining may involve acts
Union, such organisations and
notably the reproduction of works protected by copyright and/or by
institutions are confronted with
or other subject-matter and/or the the
sui generis database right,
legal uncertainty as to the extent
extraction of contents from a
notably the reproduction of works to which they can perform text
database. Where there is no
or other subject-matter and/or the and data mining of content. In
exception or limitation which
extraction of contents from a
certain instances, text and data
12513/18
BM/np
13
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
applies, an authorisation to
database. Where there is no
mining may involve acts
undertake such acts would be
exception or limitation which
protected by copyright and/or by
required from rightholders. Text
applies, an authorisation to
the
sui generis database right,
and data mining may also be
undertake such acts would be
notably the reproduction of works
carried out in relation to mere
required from rightholders. Text
or other subject-matter and/or the
facts or data which are not
and data mining may also be
extraction of contents from a
protected by copyright and in
carried out in relation to mere
database. Where there is no
such instances no authorisation
facts or data which are not
exception or limitation which
would be required.
protected by copyright and in
applies, an authorisation to
such instances no authorisation
undertake such acts would be
would be required.
required from rightholders.
[Last phrase of recital (8) of the
COM proposal was moved to new
recital (8a) Council's text -see
following row 18]
18.
(8a) Text and data mining may
also be carried out in relation to
mere facts or data which are not
protected by copyright and in
such instances no authorisation
would be
is required
under
copyright law. There may also
be instances of text and data
mining which do not involve
acts of reproduction or where
the reproductions made fall
under the The new exception
12513/18
BM/np
14
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
should be without prejudice to the
existing mandatory exception for
temporary acts of reproduction
laid down in Article 5(1) of
Directive 2001/29/EC, which
should continue to apply to text
and data mining techniques which
do not involve the making of
copies beyond the scope of that
exception.
[First phrase of new recital (8a)
was taken from recital (8) (last
phrase), second phrase of new
recital (8a) was taken from
recital (10) (second phrase)]
19.
(8a) For text and data mining to
occur, it is in most cases
necessary first to access
information and then to
reproduce it. It is generally only
after that information is
normalised that it can be
processed through text and data
mining. Once there is lawful
access to information, it is when
that information is being
normalised that a copyright-
12513/18
BM/np
15
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
protected use takes place, since
this leads to a reproduction by
changing the format of the
information or by extracting it
from a database into a format
that can be subjected to text and
data mining. The copyright-
relevant processes in the use of
text and data mining technology
is, consequently, not the text and
data mining process itself which
consists of a reading and
analysis of digitally stored,
normalised information, but the
process of accessing and the
process by which information is
normalised to enable its
automated computational
analysis, insofar as this process
involves extraction from a
database or reproductions. The
exceptions for text and data
mining purposes provided for in
this Directive should be
understood as referring to such
copyright-relevant processes
necessary to enable text and data
mining. Where existing
copyright law has been
12513/18
BM/np
16
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
inapplicable to uses of text and
data mining, such uses should
remain unaffected by this
Directive.
20.
(9) Union law already provides (9) Union law already provides (9) Union law already provides
certain exceptions and limitations certain exceptions and limitations
for certain exceptions and
covering uses for scientific
covering uses for scientific
limitations covering uses for
research purposes which may
research purposes which may
scientific research purposes which
apply to acts of text and data
apply to acts of text and data
may apply to acts of text and data
mining. However, those
mining. However, those
mining. However, those
exceptions and limitations are
exceptions and limitations are
exceptions and limitations are
optional and not fully adapted to
optional and not fully adapted to
optional and not fully adapted to
the use of technologies in
the use of technologies in
the use of technologies in
scientific research. Moreover,
scientific research. Moreover,
scientific research. Moreover,
where researchers have lawful
where researchers have lawful
where researchers have lawful
access to content, for example
access to content, for example
access to content, for example
through subscriptions to
through subscriptions to
through subscriptions to
publications or open access
publications or open access
publications or open access
licences, the terms of the licences licences, the terms of the licences licences, the terms of the licences
may exclude text and data
may exclude text and data
may exclude text and data
mining. As research is
mining. As research is
mining. As research is
increasingly carried out with the
increasingly carried out with the
increasingly carried out with the
assistance of digital technology,
assistance of digital technology,
assistance of digital technology,
there is a risk that the Union's
there is a risk that the Union's
there is a risk that the Union's
competitive position as a research competitive position as a research competitive position as a research
area will suffer unless steps are
area will suffer unless steps are
area will suffer unless steps are
taken to address the legal
taken to address the legal
taken to address the legal
uncertainty for text and data
uncertainty for text and data
uncertainty for text and data
12513/18
BM/np
17
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
mining.
mining.
mining.
21.
(10) This legal uncertainty
(10) This legal uncertainty
(10) This legal uncertainty
should be addressed by providing should be addressed by providing should be addressed by providing
for a mandatory exception to the
for a mandatory exception
for
for a mandatory exception to the
right of reproduction and also to
research organisations to the
exclusive right of reproduction
the right to prevent extraction
right of reproduction and also to
and also to the right to prevent
from a database. The new
the right to prevent extraction
extraction from a database. The
exception should be without
from a database. The new
new exception should be without
prejudice to the existing
exception should be without
prejudice to the existing
mandatory exception on
prejudice to the existing
mandatory exception on
temporary acts of reproduction
mandatory exception on
temporary acts of reproduction
laid down in Article 5(1) of
temporary acts of reproduction
laid down in Article 5(1) of
Directive 2001/29, which should laid down in Article 5(1) of
Directive 2001/29, which should
continue to apply to text and data Directive 2001/29, which should continue to apply to text and data
mining techniques which do not
continue to apply to text and data mining techniques which do not
involve the making of copies
mining techniques which do not
involve the making of copies
going beyond the scope of that
involve the making of copies
going beyond the scope of that
exception. Research organisations going beyond the scope of that
exception.
In line with the
should also benefit from the
exception. Research organisations
existing European research
exception when they engage into should also benefit from the
policy, which encourages
public-private partnerships.
exception when they engage into
universities and research
public-private partnerships.
institutes to develop
Educational establishments and collaborations with the private
cultural heritage institutions that sector, Research
research
conduct scientific research
organisations should also benefit
should also be covered by the
from the exception when they
12513/18
BM/np
18
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
text and data mining exception,
engage into
their research
provided that the results of the
activities are carried out in the
research do not benefit an
framework of public-private
undertaking exercising a decisive partnerships
. While research
influence upon such
organisations and cultural
organisations in particular. In
heritage institutions should
the event that the research is
remain the beneficiaries of the
carried out in the framework of a exception, they should be able
public-private partnership, the
to rely on their private partners
undertaking participating in the for carrying out text and data
public-private partnership
mining, including by using their
should also have lawful access to technological tools.
the works and other subject
matter. The reproductions and
[The second phrase of recital (10)
extractions made for text and
of the COM proposal was moved
data mining purposes should be to new recital (8a) - see row 18]
stored in a secure manner and in
a way that ensures that the
copies are only used for the
purpose of scientific research.
22.
(11) Research organisations
(11) Research organisations
(11) Research organisations
across the Union encompass a
across the Union encompass a
across the Union encompass a
wide variety of entities the
wide variety of entities the
wide variety of entities the
primary goal of which is to
primary goal of which is to
primary goal of which is to
conduct scientific research or to
conduct scientific research or to
conduct scientific research or to
do so together with the provision do so together with the provision do so together with the provision
of educational services. Due to
of educational services. Due to
of educational services.
The term
the diversity of such entities, it is the diversity of such entities, it is
"scientific research" within the
12513/18
BM/np
19
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
important to have a common
important to have a common
meaning of this Directive covers
understanding of the beneficiaries understanding of the beneficiaries
both the natural sciences and
of the exception. Despite different of the exception. Despite different
the human sciences. Due to the
legal forms and structures,
legal forms and structures,
diversity of such entities, it is
research organisations across
research organisations across
important to have a common
Member States generally have in Member States generally have in
understanding of the beneficiaries
common that they act either on a common that they act either on a
of the exception.
research
not for profit basis or in the
not for profit basis or in the
organisations. They should for
context of a public-interest
context of a public-interest
example cover entities such as
mission recognised by the State.
mission recognised by the State.
research institutes, hospitals
Such a public-interest mission
Such a public-interest mission
carrying out research,
may, for example, be reflected
may, for example, be reflected
universities, including
through public funding or through through public funding or through
university libraries, or other
provisions in national laws or
provisions in national laws or
higher education institutions.
public contracts. At the same
public contracts. At the same
Despite different legal forms and
time, organisations upon which
time, organisations upon which
structures, research organisations
commercial undertakings have a
commercial undertakings have a
across
the Member States
decisive influence allowing them decisive influence allowing them generally have in common that
to exercise control because of
to exercise control because of
they act either on a not for profit
structural situations such as their structural situations such as their
basis or in the context of a public-
quality of shareholders or
quality of shareholders or
interest mission recognised by the
members, which may result in
members, which may result in
State. Such a public-interest
preferential access to the results
preferential access to the results
mission may, for example, be
of the research, should not be
of the research, should not be
reflected through public funding
considered research organisations considered research organisations or through provisions in national
for the purposes of this Directive. for the purposes of this Directive. laws or public contracts. At the
same time
Conversely,
organisations upon which
commercial undertakings have a
12513/18
BM/np
20
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
decisive influence allowing them
to exercise control because of
structural situations such as their
quality of shareholders or
members, which may result in
preferential access to the results
of the research, should not be
considered research organisations
for the purposes of this Directive.
23.
(11a) Cultural heritage
institutions should be
understood as covering publicly
accessible libraries, museums
and archives regardless of the
type of works and other subject
matter which they hold in their
permanent collections, as well
as film or audio heritage
institutions. They should
include, among others, national
libraries and national archives.
They should also include
educational establishments and
public sector broadcasting
organisations, as far as their
archives and publicly accessible
libraries are concerned.
12513/18
BM/np
21
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
24.
(11b) Research organisations
and cultural heritage
institutions, including the
persons attached thereto,
should be covered by the text
and data mining exception
regarding content to which they
have lawful access. Lawful
access should be understood as
covering access to content based
on open access policy or
through contractual
arrangements between
rightholders and research
organisations or cultural
heritage institutions, such as
subscriptions, or through other
lawful means. For instance, in
cases of subscriptions taken by
research organisations or
cultural heritage institutions,
the persons attached thereto
covered by these subscriptions
would be deemed to have lawful
access. Lawful access also
covers access to content that is
freely available online.
12513/18
BM/np
22
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
25.
(11c) Research organisations
and cultural heritage
institutions may in certain
cases, for example for
subsequent verification of
scientific research results, need
to retain the copies made under
the exception for the purposes
of carrying out text and data
mining. In such cases, the
copies should be stored in a
secure environment and not be
retained for longer than
necessary for the scientific
research activities. Member
States may determine, at
national level and after
discussions with relevant
stakeholders, further concrete
modalities for retaining the
copies, including the possibility
to appoint trusted bodies for
the purpose of storing such
copies. In order not to unduly
restrict the application of the
exception, these modalities
should be proportionate and
limited to what is needed for
12513/18
BM/np
23
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
retaining the copies in a safe
manner and preventing
unauthorised uses. Uses for the
purpose of scientific research
other than text and data
mining, such as scientific peer
review and joint research,
should remain covered, where
applicable, by the exception or
limitation provided for in
Article 5(3)(a) of Directive
2001/29/EC.
26.
(12) In view of a potentially high (12) In view of a potentially high (12) In view of a potentially high
number of access requests to and number of access requests to and number of access requests to and
downloads of their works or other downloads of their works or other downloads of their works or other
subject-matter, rightholders
subject-matter, rightholders
subject-matter, rightholders
should be allowed to apply
should be allowed to apply
should be allowed to apply
measures where there is risk that
measures where there is risk that
measures where
when there is
a
the security and integrity of the
the security and integrity of the
risk that the security and integrity
system or databases where the
system or databases where the
of the system
their systems or
works or other subject-matter are works or other subject-matter are databases where the works or
hosted would be jeopardised.
hosted would be jeopardised.
other subject-matter are hosted
Those measures should not
Those measures should not
would
could be jeopardised.
exceed what is necessary to
exceed what is necessary to
Those
Such measures could for
pursue the objective of ensuring
pursue the objective of ensuring
example be used to ensure that
the security and integrity of the
the security and integrity of the
only persons having lawful
system and should not undermine system and should not undermine
access to their data can access
the effective application of the
the effective application of the
it, including through IP address
12513/18
BM/np
24
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
exception.
exception.
validation or user
authentication. These measures
should not exceed what is
necessary to pursue the objective
of ensuring the security and
integrity of the system
however
remain proportionate to the
risks involved and should not
undermine the effective
application of the
exception
prevent or make
excessively difficult text and
data mining carried out by
researchers.
27.
(13) There is no need to provide (13) There is no need to provide (13) There is no need to
In view
for compensation for rightholders for compensation for rightholders
of the nature and scope of the
as regards uses under the text and as regards uses under the text and
exception, which is limited to
data mining exception introduced data mining exception introduced
entities carrying out scientific
by this Directive given that in
by this Directive given that in
research any potential harm to
view of the nature and scope of
view of the nature and scope of
rightholders created through
the exception the harm should be the exception the harm should be
this exception should be
minimal.
minimal.
minimal. Therefore, Member
States should not provide for
compensation for rightholders as
regards uses under the text and
data mining exception introduced
by this Directive given that in
view of the nature and scope of
12513/18
BM/np
25
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
the exception the harm should be
minimal.
28.
(13a) In addition to their
significance in the context of
scientific research, text and
data mining techniques are
widely used both by private and
public entities to analyse large
amounts of data in different
areas of life and for various
purposes, including for
government services, complex
business decisions and the
development of new
applications or technologies.
Rightholders should remain
able to license the uses of their
works and other subject-matter
falling outside the scope of the
mandatory exception provided
for in this Directive and the
existing exceptions and
limitations provided for in
Directive 2001/29/EC. At the
same time, consideration should
be given to the fact that users of
text and data mining techniques
may be faced with legal
12513/18
BM/np
26
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
uncertainty as to whether
temporary reproductions and
extractions which are a part of
the process of text and data
mining may be carried out on
publicly available and lawfully
accessed works and other
subject-matter, in particular
when the reproductions or
extractions made for the
purposes of the technical
process may not fulfil all the
conditions of the existing
exception for temporary acts of
reproduction in Article 5(1) of
Directive 2001/29/EC. In order
to provide for more legal
certainty in such cases, this
Directive should enable the
Member States to provide
under certain conditions for an
exception or limitation for
temporary reproductions and
extractions of works and other
subject-matter, insofar as these
form a part of the text and data
mining process and the copies
made are not kept beyond that
process. This optional exception
12513/18
BM/np
27
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
or limitation should only apply
when the work or other subject-
matter is accessed lawfully by
the beneficiary, including when
it has been made available to
the public online, and insofar as
the rightholders have not
reserved the right to make
reproductions and extractions
for text and data mining, for
example by agreement,
unilateral declaration,
including through the use of
machine readable metadata or
by the use of technical means.
Rightholders should be able to
apply measures to ensure that
their reservations in this regard
are respected. This optional
exception or limitation should
leave intact the mandatory
exception for text and data
mining for research purposes
laid down in this Directive.
29.
(13a) To encourage innovation
also in the private sector,
Member States should be able to
provide for an exception going
12513/18
BM/np
28
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
further than the mandatory
exception, provided that the use
of works and other subject
matter referred to therein has not
been expressly reserved by their
rightholders including by
machine readable means.
30.
(14) Article 5(3)(a) of Directive (14) Article 5(3)(a) of Directive (14) Article 5(3)(a) of Directive
2001/29/EC allows Member
2001/29/EC allows Member
2001/29/EC allows Member
States to introduce an exception
States to introduce an exception
States to introduce an exception
or limitation to the rights of
or limitation to the rights of
or limitation to the rights of
reproduction, communication to
reproduction, communication to
reproduction, communication to
the public and making available
the public and making available
the public and making available
to the public for the sole purpose to the public for the sole purpose to the public
of works and other
of, among others, illustration for
of, among others, illustration for
subject matter in such a way
teaching. In addition, Articles
teaching. In addition, Articles
that members of the public may
6(2)(b) and 9(b) of Directive
6(2)(b) and 9(b) of Directive
access them from a place and a
96/9/EC permit the use of a
96/9/EC permit the use of a
time individually chosen by
database and the extraction or re-
database and the extraction or re-
them (‘making available to the
utilization of a substantial part of utilization of a substantial part of
public’), for the sole purpose of,
its contents for the purpose of
its contents for the purpose of
among others, illustration for
illustration for teaching. The
illustration for teaching. The
teaching. In addition, Articles
scope of those exceptions or
scope of those exceptions or
6(2)(b) and 9(b) of Directive
limitations as they apply to digital limitations as they apply to digital 96/9/EC permit the use of a
uses is unclear. In addition, there uses is unclear. In addition, there database and the extraction or re-
is a lack of clarity as to whether
is a lack of clarity as to whether
utilization of a substantial part of
those exceptions or limitations
those exceptions or limitations
its contents for the purpose of
would apply where teaching is
would apply where teaching is
illustration for teaching. The
12513/18
BM/np
29
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
provided online and thereby at a
provided online and thereby at a
scope of those exceptions or
distance. Moreover, the existing
distance. Moreover, the existing
limitations as they apply to digital
framework does not provide for a framework does not provide for a uses is unclear. In addition, there
cross-border effect. This situation cross-border effect. This situation is a lack of clarity as to whether
may hamper the development of
may hamper the development of
those exceptions or limitations
digitally-supported teaching
digitally-supported teaching
would apply where teaching is
activities and distance learning.
activities and distance learning.
provided online and thereby at a
Therefore, the introduction of a
Therefore, the introduction of a
distance. Moreover, the existing
new mandatory exception or
new mandatory exception or
legal framework does not provide
limitation is necessary to ensure
limitation is necessary to ensure
for a cross-border effect. This
that educational establishments
that educational establishments
situation may hamper the
benefit from full legal certainty
benefit from full legal certainty
development of digitally-
when using works or other
when using works or other
supported teaching activities and
subject-matter in digital teaching subject-matter in digital teaching distance learning. Therefore, the
activities, including online and
activities, including online and
introduction of a new mandatory
across borders.
across borders.
exception or limitation is
necessary to ensure that
educational establishments
benefit from full legal certainty
when using works or other
subject-matter in digital teaching
activities, including online and
across borders.
31.
(15) While distance learning and (15) While distance learning and (15) While distance learning and
cross-border education
cross-border education
cross-border education
programmes are mostly
programmes are mostly
programmes are mostly
developed at higher education
developed at higher education
developed at higher education
level, digital tools and resources
level, digital tools and resources
level, digital tools and resources
12513/18
BM/np
30
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
are increasingly used at all
are increasingly used at all
are increasingly used at all
education levels, in particular to
education levels, in particular to
education levels, in particular to
improve and enrich the learning
improve and enrich the learning
improve and enrich the learning
experience. The exception or
experience. The exception or
experience. The exception or
limitation provided for in this
limitation provided for in this
limitation provided for in this
Directive should therefore benefit Directive should therefore benefit Directive should therefore benefit
all educational establishments in
all educational establishments in
all educational establishments
primary, secondary, vocational
primary, secondary, vocational
in
recognised by a Member
and higher education to the extent and higher education to the extent
State, including primary,
they pursue their educational
they pursue their educational
secondary, vocational and higher
activity for a non-commercial
activity for a non-commercial
education
. It should apply only
purpose. The organisational
purpose. The organisational
to the extent they pursue their
structure and the means of
structure and the means of
educational activity for a
that the
funding of an educational
funding of an educational
uses are justified by the non-
establishment are not the decisive establishment are not the decisive commercial purpose.
of the
factors to determine the non-
factors to determine the non-
particular teaching activity. The
commercial nature of the activity. commercial nature of the activity. organisational structure and the
Where cultural heritage
means of funding of an
institutions pursue an
educational establishment
educational objective and are
are
should not
be the decisive
involved in teaching activities, it factors to determine the non-
should be possible for Member
commercial nature of the activity.
States to consider those
institutions as an educational
establishment under this
exception in so far as their
teaching activities are
concerned.
12513/18
BM/np
31
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
32.
(16) The exception or limitation (16) The exception or limitation
(16) The exception or limitation
should cover digital uses of works should cover digital uses of works
for the sole purpose of
and other subject-matter such as
and other subject-matter such as
illustration for teaching
the use of parts or extracts of
the use of parts or extracts of
provided for in this Directive
works to support, enrich or
works to support, enrich or
should cover
be understood as
complement the teaching,
complement the teaching,
covering digital uses of works
including the related learning
including the related learning
and other subject-matter such as
activities. The use of the works or activities.
The exception or
the use of parts or extracts of
other subject-matter under the
limitation of use should be
works to support, enrich or
exception or limitation should be
granted as long as the work or
complement the teaching,
only in the context of teaching
other subject-matter used
including the related learning
and learning activities carried out
indicates the source, including
activities.
under the responsibility of
the authors’ name, unless that
educational establishments,
turns out to be impossible for
[…]*
including during examinations,
reasons of practicability. The use
and be limited to what is
of the works or other subject-
In most cases, the concept of
necessary for the purpose of such matter under the exception or
illustration would therefore
activities. The exception or
limitation should be only in the
imply uses of parts or extracts
limitation should cover both uses context of teaching and learning
of works only, which should not
through digital means in the
activities carried out under the
substitute the purchase of
classroom and online uses
responsibility of educational
materials primarily intended
through the educational
establishments, including during
for educational markets. When
establishment's secure electronic
examinations, and be limited to
implementing the exception or
network, the access to which
what is necessary for the purpose
limitation, Member States
should be protected, notably by
of such activities. The exception
should remain free to specify,
authentication procedures. The
or limitation should cover both
for the different categories of
exception or limitation should be uses through digital means in the
works or other subject-matter
understood as covering the
classroom
where the teaching
and in a balanced manner, the
12513/18
BM/np
32
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
specific accessibility needs of
activity is physically provided,
proportion of a work or other
persons with a disability in the
including where it takes place
subject-matter that may be
context of illustration for
outside the premises of the
used for the sole purpose of
teaching.
educational establishment, for
illustration for teaching. The
example in libraries or cultural
Uses allowed under the
heritage institutions, as long as
exception or limitation should be
the use is made under the
understood to cover the specific
responsibility of the educational accessibility needs of persons
establishment, and online uses
with a disability in the context of
through the educational
illustration for teaching.
establishment's secure electronic
network
environment, the access
*[The second and third phrase of
to which should be protected,
recital (16) of the COM proposal
notably by authentication
were moved to new recital (16a)
procedures. The exception or
Council's text - see row 33]
limitation should be understood
as covering the specific
accessibility needs of persons
with a disability in the context of
illustration for teaching.
33.
(16a) The use of the works or
other subject-matter under the
exception or limitation should be
only in the context of teaching
and learning activities carried out
under the responsibility of
educational establishments,
including during examinations
or
12513/18
BM/np
33
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
teaching activities taking place
outside the premises of
educational establishments, for
example in a museum, library
or another cultural heritage
institution, and be limited to
what is necessary for the purpose
of such activities. The exception
or limitation should cover both
uses through digital means
of
works and other subject matter
made in the classroom and online
uses
or in other venues through
digital means,
for example
electronic whiteboards or
digital devices which may be
connected to the Internet, as
well as uses made at a distance
through the educational
establishment's secure electronic
networks,
such as online courses
or access to teaching material
complementing a given course.
Secure electronic networks
should be understood as digital
teaching and learning
environments the access to
which should be protected
is
limited to the educational
12513/18
BM/np
34
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
establishment's teaching staff
and to the pupils or students
enrolled in a study programme,
notably through appropriate
authentication procedures,
including password based
authentication.
[Phrases of new recital (16a)
were taken from recital (16)
(second and third phrase) of the
COM proposal – see row 32]
34.
(16a) A secure electronic
environment should be
understood as a digital teaching
and learning environment,
access to which is limited
through an appropriate
authentication procedure to the
educational establishment’s
teaching staff and to the pupils
or students enrolled in a study
programme.
12513/18
BM/np
35
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
35.
(17) Different arrangements,
(17) Different arrangements,
(17) Different arrangements,
based on the implementation of
based on the implementation of
based on the implementation of
the exception provided for in
the exception provided for in
the exception provided for in
Directive 2001/29/EC or on
Directive 2001/29/EC or on
Directive 2001/29/EC or on
licensing agreements covering
licensing agreements covering
licensing agreements covering
further uses, are in place in a
further uses, are in place in a
further uses, are in place in a
number of Member States in
number of Member States in
number of Member States in
order to facilitate educational uses order to facilitate educational uses order to facilitate educational
of works and other subject-matter. of works and other subject-matter. uses of works and other subject-
Such arrangements have usually
Such arrangements have usually
matter. Such arrangements have
been developed taking account of been developed taking account of usually been developed taking
the needs of educational
the needs of educational
account of the needs of
establishments and different
establishments and different
educational establishments and
levels of education. Whereas it is levels of education. Whereas it is different levels of education.
essential to harmonise the scope
essential to harmonise the scope
Whereas it is essential to
of the new mandatory exception
of the new mandatory exception
harmonise the scope of the new
or limitation in relation to digital or limitation in relation to digital
mandatory exception or limitation
uses and cross-border teaching
uses and cross-border teaching
in relation to digital uses and
activities, the modalities of
activities, the modalities of
cross-border teaching activities,
implementation may differ from a implementation may differ from a the modalities of implementation
Member State to another, to the
Member State to another, to the
may differ from a Member State
extent they do not hamper the
extent they do not hamper the
to another, to the extent they do
effective application of the
effective application of the
not hamper the effective
exception or limitation or cross-
exception or limitation or cross-
application of the exception or
border uses. This should allow
border uses. This should allow
limitation or cross-border uses.
Member States to build on the
Member States to build on the
Member States should for
existing arrangements concluded existing arrangements concluded
example remain free to require
at national level. In particular,
at national level. In particular,
that the use of works and other
12513/18
BM/np
36
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
Member States could decide to
Member States could decide to
subject matter should respect
subject the application of the
subject the application of the
moral rights of authors and
exception or limitation, fully or
exception or limitation, fully or
performers. This should allow
partially, to the availability of
partially, to the availability of
Member States to build on the
adequate licences, covering at
adequate licences, covering.
Such existing arrangements concluded
least the same uses as those
licences can take the form of
at national level. In particular,
allowed under the exception. This
collective licensing agreements,
Member States could decide to
mechanism would, for example,
extended collective licensing
subject the application of the
allow giving precedence to
agreements and licences that are exception or limitation, fully or
licences for materials which are
negotiated collectively such as
partially, to the availability of
primarily intended for the
“blanket licences”, in order to
adequate licences, covering at
educational market. In order to
avoid educational establishments least the same uses as those
avoid that such mechanism results
having to negotiate individually
allowed under the exception.
in legal uncertainty or
with rightholders. Such licenses This
Member States could
administrative burden for
should be affordable and cover at
notably use this mechanism
educational establishments,
least the same uses as those
would, for example, allow
Member States adopting this
allowed under the exception. This giving
to give precedence to
approach should take concrete
mechanism would, for example,
licences for materials which are
measures to ensure that licensing allow giving precedence to
primarily intended for the
schemes allowing digital uses of
licences for materials which are
educational market
or for sheet
works or other subject-matter for primarily intended for the
music. In order to avoid that such
the purpose of illustration for
educational market
, or for
mechanism results in legal
teaching are easily available and
teaching in educational
uncertainty or administrative
that educational establishments
establishments or sheet music. In burden for educational
are aware of the existence of such order to avoid that such
establishments, Member States
licensing schemes.
mechanism results in legal
adopting this approach should
uncertainty or administrative
take concrete measures to ensure
burden for educational
that
rightholders make the
establishments, Member States
licensing schemes allowing
12513/18
BM/np
37
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
adopting this approach should
digital uses of works or other
take concrete measures to ensure
subject-matter for the purpose of
that
such licensing schemes
illustration for teaching are easily
allowing digital uses of works or
available and that educational
other subject-matter for the
establishments are aware of the
purpose of illustration for
existence of such licensing
teaching are easily available and
schemes.
Such measures may
that educational establishments
include the development of
are aware of the existence of such
licensing schemes tailored to
licensing schemes.
Member
the needs of educational
States should be able to provide
establishments and the
for systems to ensure that there
development of information
is fair compensation for
tools aimed at ensuring the
rightholders for uses under those visibility of the existing
exceptions or limitations.
licensing schemes.
Member States should be
encouraged to use systems that
do not create an administrative
burden, such as systems that
provide for one-off payments.
[See Council’s recital (17a) - row
36]
36.
(17a) Member States should
remain free to provide that
rightholders receive fair
compensation for the digital
uses of their works or other
12513/18
BM/np
38
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
subject-matter under the
exception or limitation for
illustration for teaching
provided for in this Directive.
For the purposes of
determining the possible level
of fair compensation, due
account should be taken, inter
alia, of Member States'
educational objectives and of
the harm to rightholders.
37.
(17 a) In order to guarantee
legal certainty when a Member
State decides to subject the
application of the exception to
the availability of adequate
licences, it is necessary to specify
under which conditions an
educational establishment may
use protected works or other
subject-matter under that
exception and, conversely, when
it should act under a licensing
scheme.
38.
(18) An act of preservation may (18) An act of preservation
of a
(18) An act of preservation may
require a reproduction of a work
work or other subject-matter in
require a reproduction of a work
or other subject-matter in the
the collection of a cultural
or other subject-matter in the
12513/18
BM/np
39
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
collection of a cultural heritage
heritage institution may require a collection of a cultural heritage
institution and consequently the
reproduction of a work or other
institution
may require a
authorisation of the relevant
subject-matter in the collection of
reproduction and consequently
rightholders. Cultural heritage
a cultural heritage institution and the authorisation of the relevant
institutions are engaged in the
consequently
require the
rightholders. Cultural heritage
preservation of their collections
authorisation of the relevant
institutions are engaged in the
for future generations. Digital
rightholders. Cultural heritage
preservation of their collections
technologies offer new ways to
institutions are engaged in the
for future generations. Digital
preserve the heritage contained in preservation of their collections
technologies offer new ways to
those collections but they also
for future generations. Digital
preserve the heritage contained in
create new challenges. In view of technologies offer new ways to
those collections but they also
these new challenges, it is
preserve the heritage contained in create new challenges. In view of
necessary to adapt the current
those collections but they also
these new challenges, it is
legal framework by providing a
create new challenges. In view of necessary to adapt the current
mandatory exception to the right
these new challenges, it is
legal framework by providing a
of reproduction in order to allow
necessary to adapt the current
mandatory exception to the right
those acts of preservation.
legal framework by providing a
of reproduction in order to allow
mandatory exception to the right
those acts of preservation.
of reproduction in order to allow
those acts of preservation
by such
institutions.
39.
(19) Different approaches in the (19) Different approaches in the
(19) Different approaches in the
Member States for acts of
Member States for acts of
Member States for acts of
preservation by cultural heritage
reproduction for preservation by preservation by cultural heritage
institutions hamper cross-border
cultural heritage institutions
institutions hamper cross-border
cooperation and the sharing of
hamper cross-border cooperation
, cooperation and the sharing of
means of preservation by cultural and the sharing of means of
means of preservation by cultural
heritage institutions in the internal preservation by cultural heritage
heritage
such institutions in the
12513/18
BM/np
40
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
market, leading to an inefficient
institutions in the internal market, internal market, leading to an
use of resources.
and the establishment of cross-
inefficient use of resources.
border preservation networks in
the internal market
organisations that are engaged
in preservation, leading to an
inefficient use of resources.
This
can have a negative impact on
the preservation of cultural
heritage.
40.
(20) Member States should
(20) Member States should
(20) Member States should
therefore be required to provide
therefore be required to provide
therefore be required to provide
for an exception to permit cultural for an exception to permit cultural for an exception to permit cultural
heritage institutions to reproduce heritage institutions to reproduce heritage institutions to reproduce
works and other subject-matter
works and other subject-matter
works and other subject-matter
permanently in their collections
permanently in their collections
permanently in their collections
for preservation purposes, for
for preservation purposes, for
for preservation purposes, for
example to address technological example to address technological example to address technological
obsolescence or the degradation
obsolescence or the degradation
obsolescence or the degradation
of original supports. Such an
of original supports
or to insure
of original supports. Such an
exception should allow for the
works. Such an exception should exception should allow for the
making of copies by the
allow for the making of copies by making of copies by the
appropriate preservation tool,
the appropriate preservation tool, appropriate preservation tool,
means or technology, in the
means or technology,
in any
means or technology, in the
required number and at any point
format or medium, in the
required number and at any point
in the life of a work or other
required number, at any point in
in the life of a work or other
subject-matter to the extent
the life of a work or other subject- subject-matter to the extent
required in order to produce a
matter
and to the extent required
required in order to produce a
12513/18
BM/np
41
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
copy for preservation purposes
in order to produce a copy for
copy for preservation purposes
only.
preservation purposes only.
The
only.
Acts of reproduction
archives of research
undertaken by cultural heritage
organisations or public-service
institutions for purposes other
broadcasting organisations
than the preservation of works
should be considered cultural
and other subject-matter in
heritage institutions and
their permanent collections
therefore beneficiaries of this
should remain subject to the
exception. Member States
authorisation of rightholders,
should, for the purpose of this
unless permitted by other
exception, be able to maintain
exceptions or limitations
provisions to treat publicly
provided for by Union law.
accessible galleries as museums.
41.
(20a) Cultural heritage
institutions do not necessarily
have the technical means or
expertise to undertake the acts
required to preserve their
collections themselves,
particularly in the digital
environment, and may
therefore have recourse to the
assistance of other cultural
institutions and other third
parties for that purpose. Under
this exception, cultural heritage
institutions should therefore be
allowed to rely on third parties
12513/18
BM/np
42
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
acting on their behalf and
under their responsibility,
including those that are based
in other Member States, for the
making of copies.
42.
(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
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
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
are owned or permanently held by
of such works or other subject
are owned or permanently held by
the cultural heritage institution,
matter are owned or permanently the cultural heritage
for example as a result of a
held by the cultural heritage
institution
such institutions, for
transfer of ownership or licence
institution,
those organisations,
example as a result of a transfer
agreements.
for example as a result of a
of ownership or licence
transfer of ownership or
, licence
agreements
or permanent
agreements,
a legal deposit or a
custody arrangements.
long-term loan . Works or other
subject matter that cultural
heritage institutions access
temporarily via a third-party
server are not considered as
being permanently in their
collections.
43.
(21a) Technological
developments have given rise to
12513/18
BM/np
43
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
information society services
enabling their users to upload
content and make it available in
diverse forms and for various
purposes, including to illustrate
an idea, criticism, parody or
pastiche. Such content may
include short extracts of pre-
existing protected works or other
subject-matter that such users
might have altered, combined or
otherwise transformed.
44.
(21b) Despite some overlap with
existing exceptions or
limitations, such as the ones for
quotation and parody, not all
content that is uploaded or made
available by a user that
reasonably includes extracts of
protected works or other subject-
matter is covered by Article 5 of
Directive 2001/29/EC. A
situation of this type creates legal
uncertainty for both users and
rightholders. It is therefore
necessary to provide a new
specific exception to permit the
legitimate uses of extracts of pre-
12513/18
BM/np
44
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
existing protected works or other
subject-matter in content that is
uploaded or made available by
users. Where content generated
or made available by a user
involves the short and
proportionate use of a quotation
or of an extract of a protected
work or other subject-matter for
a legitimate purpose, such use
should be protected by the
exception provided for in this
Directive. This exception should
only be applied in certain special
cases which do not conflict with
normal exploitation of the work
or other subject-matter
concerned and do not
unreasonably prejudice the
legitimate interests of the
rightholder. For the purpose of
assessing such prejudice, it is
essential that the degree of
originality of the content
concerned, the length/extent of
the quotation or extract used, the
professional nature of the
content concerned or the degree
of economic harm be examined,
12513/18
BM/np
45
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
where relevant, while not
precluding the legitimate
enjoyment of the exception. This
exception should be without
prejudice to the moral rights of
the authors of the work or other
subject-matter.
45.
(21c) Information society
service providers that fall within
the scope of Article 13 of this
Directive should not be able to
invoke for their benefit the
exception for the use of extracts
from pre-existing works provided
for in this Directive, for the use
of quotations or extracts from
protected works or other subject-
matter in content that is
uploaded or made available by
users on those information
society services, to reduce the
scope of their obligations under
Article 13 of this Directive.
46.
(22) Cultural heritage
(22) Cultural heritage institutions (22) Cultural heritage
institutions should benefit from a should benefit from a clear
institutions should benefit from a
clear framework for the
framework for the digitisation and clear framework for the
digitisation and dissemination,
dissemination, including across
digitisation and dissemination,
12513/18
BM/np
46
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
including across borders, of out-
borders, of out-of-commerce
including across borders, of out-
of-commerce works or other
works or other subject-matter.
of-commerce works or other
subject-matter. However, the
However, the particular
subject-
matter.
that are
particular characteristics of the
characteristics of the collections
considered out of commerce for
collections of out-of-commerce
of out-of-commerce works mean
the purposes of this Directive.
works mean that obtaining the
that obtaining the prior consent of However, the particular
prior consent of the individual
the individual rightholders may
characteristics of the collections
rightholders may be very difficult. be very difficult. This can be due, of out-of-commerce works
,
This can be due, for example, to
for example, to the age of the
together with the amount of
the age of the works or other
works or other subject-matter,
works involved in mass
subject-matter, their limited
their limited commercial value or
digitisation projects, mean that
commercial value or the fact that the fact that they were never
obtaining the prior consent of the
they were never intended for
intended for commercial use
or
individual rightholders may be
commercial use. It is therefore
have never been in commerce. It very difficult. This can be due,
necessary to provide for measures is therefore necessary to provide
for example, to the age of the
to facilitate the licensing of rights for measures to facilitate the
works or other subject-matter,
in out-of-commerce works that
licensing of rights in
use of out-
their limited commercial value or
are in the collections of cultural
of-commerce works that are in the the fact that they were never
heritage institutions and thereby
collections of cultural heritage
intended for commercial use. It is
to allow the conclusion of
institutions and thereby to allow
therefore necessary to provide for
agreements with cross-border
the conclusion of agreements with measures to facilitate the
effect in the internal market.
cross-border effect in the internal
collective licensing of rights in
market.
out-of-commerce works that are
permanently in the collections of
cultural heritage institutions and
thereby to allow the conclusion of
agreements with cross-border
effect in the internal market.
12513/18
BM/np
47
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
47.
(22a) Several Member States
have already adopted extended
collective licencing regimes,
legal mandates or legal
presumptions facilitating the
licencing of out-of-commerce
works. However considering the
variety of works and other
subject-matter in the collections
of cultural heritage institutions
and the variance between
collective management practices
across Member States and
sectors of cultural production,
such measures may not provide a
solution in all cases, for
example, because there is no
practice of collective
management for a certain type of
work or other subject matter. In
such particular instances, it is
therefore necessary to allow
cultural heritage institutions to
make out-of-commerce works
held in their permanent
collection available online under
an exception to copyright and
related rights. While it is
12513/18
BM/np
48
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
essential to harmonise the scope
of the new mandatory exception
in order to allow cross-border
uses of out-of-commerce works,
Member States should
nevertheless be allowed to use or
continue to use extended
collective licencing
arrangements concluded with
cultural heritage institutions at
national level for categories of
works that are permanently in
the collections of cultural
heritage institutions The lack of
agreement on the conditions of
the licence should not be
interpreted as a lack of
availability of licensing-based
solutions. Any uses under this
exception should be subject to
the same opt-out and publicity
requirements as uses authorised
by a licensing mechanism. In
order to ensure that the
exception only applies when
certain conditions are fulfilled
and to provide legal certainty,
Member States should
determine, in consultation with
12513/18
BM/np
49
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
rightholders, collective
management organisations and
cultural heritage organisations,
and at 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.
48.
(23) Member States should,
(23) Member States should,
(23) Member States should,
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
flexibility in choosing the specific flexibility in choosing the specific flexibility in choosing the specific
type of mechanism allowing for
type of mechanism allowing for
type of mechanism
, such as
licences for out-of-commerce
licences for out-of-commerce
extended collective licensing or
works to extend to the rights of
works to extend to the rights of
presumption of representation,
rightholders that are not
rightholders that are not
allowing for licences for out-of-
represented by the collective
represented by the
relevant
commerce works to extend to the
management organisation, in
collective management
rights of rightholders that are
have
accordance to their legal
organisation, in accordance to
not represented by the
mandated
traditions, practices or
with their legal traditions,
a representative collective
circumstances. Such mechanisms practices or circumstances. Such
management organisation, in
can include extended collective
mechanisms can include extended accordance to
with their legal
licensing and presumptions of
collective licensing and
traditions, practices or
representation.
presumptions of representation.
circumstances. Such mechanisms
can include extended collective
licensing and presumptions of
representation
Member States
12513/18
BM/np
50
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
should also have flexibility in
determining the requirements
for collective management
organisations to be sufficiently
representative, as long as this is
based on a significant number
of rightholders in the relevant
type of works or other subject-
matter who have given a
mandate allowing the licensing
of the relevant type of use.
Member States should be free
to establish specific rules
applicable to cases where more
than one 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
licensing mechanisms, a rigorous licensing mechanisms, a rigorous licensing mechanisms, a rigorous
and well-functioning collective
and well-functioning collective
and well-functioning collective
management system is important. management system is important management system is important.
That system includes in particular
and should be encouraged by the That system includes in particular
rules of good governance,
Member States. That system
rules of good governance,
transparency and reporting, as
includes in particular rules of
transparency and reporting, as
12513/18
BM/np
51
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
well as the regular, diligent and
good governance, transparency
well as the regular, diligent and
accurate distribution and payment and reporting, as well as the
accurate distribution and payment
of amounts due to individual
regular, diligent and accurate
of amounts due to individual
rightholders, as provided for by
distribution and payment of
rightholders, as provided for by
Directive 2014/26/EU. Additional amounts due to individual
Directive 2014/26/EU. Additional
appropriate safeguards should be rightholders, as provided for by
appropriate safeguards should be
available for all rightholders, who Directive 2014/26/EU. Additional available for all rightholders, who
should be given the opportunity to appropriate safeguards should be should be given the opportunity
exclude the application of such
available for all rightholders, who to exclude the application of such
mechanisms to their works or
should be given the opportunity to mechanisms
in relation to
all
other subject-matter. Conditions
exclude the application of such
their works or other subject-
attached to those mechanisms
licensing mechanisms
or of such matter
or to all licences, or in
should not affect their practical
exceptions to their works or other
relation to particular works or
relevance for cultural heritage
subject-matter. Conditions
other subject-matter or to
institutions.
attached to those mechanisms
particular licences, at any time
should not affect their practical
before or under the duration of
relevance for cultural heritage
the licence. Conditions attached
institutions.
to those mechanisms should not
affect their practical relevance for
cultural heritage institutions.
It is
important that when a
rightholder excludes the
application of such mechanisms
to one or more of their works or
other subject-matter, the
informed collective
management organisation does
not continue to issue licences
covering the relevant uses and
12513/18
BM/np
52
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
any ongoing uses are
terminated within a reasonable
period. Such exclusion by the
rightholder should not affect
their claim to remuneration for
the actual use of the work or
other subject-matter.
50.
(24a) This Directive does not
affect the possibility for
Member States to determine
the allocation of legal
responsibility for the
compliance of the licensing and
the use of out-of-commerce
works with the conditions set
out in this Directive and for the
compliance of the parties with
the terms of those licenses.
51.
(25) Considering the variety of
(25) Considering the variety of
(25) Considering the variety of
works and other subject-matter in works and other subject-matter in works and other subject-matter in
the collections of cultural heritage the collections of cultural heritage the collections of cultural heritage
institutions, it is important that
institutions, it is important that
institutions, it is important that
the licensing mechanisms
the licensing mechanisms
the licensing mechanisms
introduced by this Directive are
introduced by this Directive are
introduced by this Directive are
available and can be used in
available and can be used in
available and can be used in
practice for different types of
practice for different types of
practice for different types of
works and other subject-matter,
works and other subject-matter,
works and other subject-matter,
12513/18
BM/np
53
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
including photographs, sound
including photographs, sound
including photographs,
software,
recordings and audiovisual works. recordings and audiovisual works.
phonograms, sound recordings
In order to reflect the specificities In order to reflect the specificities and audiovisual works.
and
of different categories of works
of different categories of works
unique works of art,
and other subject-matter as
and other subject-matter as
irrespective of whether they
regards modes of publication and regards modes of publication and
have ever been commercially
distribution and to facilitate the
distribution and to facilitate the
available. Never-in-commerce
usability of those mechanisms,
usability of those mechanisms,
works may include posters,
specific requirements and
the solutions on the use of out-
leaflets, trench journals or
procedures may have to be
of-commerce works introduced
amateur audiovisual works, but
established by Member States for
by this Directive, specific
also unpublished works or
the practical application of those
requirements and procedures may
other subject-matter, without
licensing mechanisms. It is
have to be established by Member
prejudice to other applicable
appropriate that Member States
States for the practical application
legal constraints, such as
consult rightholders, users and
of those licensing mechanisms. It
national rules on moral rights.
collective management
is appropriate that Member States
When a work is available in any
organisations when doing so.
consult rightholders, users
of its different versions, such as
cultural heritage institutions and
subsequent editions of literary
collective management
works and alternate cuts of
organisations when doing so.
cinematographic works, or in
any of its different
manifestations, such as digital
and printed formats of the same
work, this work or other
subject-matter should not be
considered out of commerce.
Conversely, the commercial
availability of adaptations,
including other language
12513/18
BM/np
54
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
versions or audiovisual
adaptations of a literary work,
should not preclude the
determination of the out-of-
commerce status of a work in a
given language. In order to
reflect the specificities of
different categories
types of
works and other subject-matter as
regards modes of publication and
distribution and to facilitate the
usability of those mechanisms,
specific requirements and
procedures may have to be
established by Member States for
the practical application of those
licensing mechanisms
, such as a
time period which needs to have
been elapsed since the first
commercial availability of the
work. It is appropriate that
Member States consult
rightholders, users and collective
management organisations when
doing so.
52.
(25a) When determining
whether works and other
subject-matter are out of
12513/18
BM/np
55
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
commerce, a reasonable effort
should be required to assess
their availability to the public
in the customary channels of
commerce, taking into account
the characteristics of the
particular work or set of works.
Member States should be free
to determine the allocation of
responsibilities for making the
reasonable effort. The
reasonable effort should not
have to be repeated over time
but it should also take account
of any easily accessible evidence
of upcoming availability of
works in the customary
channels of commerce. A work-
by-work assessment should only
be required when this is
considered reasonable in view
of the availability of relevant
information, the likelihood of
commercial availability and the
expected transaction cost. The
verification of availability
should normally take place in
the Member State where the
cultural heritage institution is
12513/18
BM/np
56
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
established, unless verification
across borders is considered
reasonable, for example when
there is easily available
information that a literary
work was first published in a
given language version in
another Member State. In
many cases the out-of-
commerce status of a set of
works could be determined
through a proportionate
mechanism, such as sampling.
The limited availability of a
work, such as its availability in
second-hand shops, or the
theoretical possibility to obtain
a licence to a work should not
be considered as availability to
the public in the customary
channels of commerce.
53.
(26) For reasons of international (26) For reasons of international (26) For reasons of international
comity, the licensing mechanisms comity, the licensing mechanisms comity, the licensing mechanisms
for the digitisation and
and the exception for the
for the digitisation and
dissemination of out-of-
digitisation and dissemination of
dissemination of out-of-
commerce works provided for in out-of-commerce works provided commerce works provided for in
this Directive should not apply to for in this Directive should not
this Directive should not apply to
works or other subject-matter that apply to works or other subject-
works or other subject-matter that
12513/18
BM/np
57
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
are first published or, in the
matter that are first published or,
are first published or, in the
absence of publication, first
in the absence of publication, first absence of publication, first
broadcast in a third country or, in broadcast in a third country or, in broadcast in a third country or, in
the case of cinematographic or
the case of cinematographic or
the case of cinematographic or
audiovisual works, to works the
audiovisual works, to works the
audiovisual works, to works the
producer of which has his
producer of which has his
producer of which has his
headquarters or habitual residence headquarters or habitual residence headquarters or habitual residence
in a third country. Those
in a third country. Those
in a third country. Those
mechanisms should also not apply mechanisms should also not apply mechanisms should also not
to works or other subject-matter
to works or other subject-matter
apply to works or other subject-
of third country nationals except
of third country nationals except
matter of third country nationals
when they are first published or,
when they are first published or,
except when they are first
in the absence of publication, first in the absence of publication, first published or, in the absence of
broadcast in the territory of a
broadcast in the territory of a
publication, first broadcast in the
Member State or, in the case of
Member State or, in the case of
territory of a Member State or, in
cinematographic or audiovisual
cinematographic or audiovisual
the case of cinematographic or
works, to works of which the
works, to works of which the
audiovisual works, to works of
producer's headquarters or
producer's headquarters or
which the producer's headquarters
habitual residence is in a Member habitual residence is in a Member or habitual residence is in a
State.
State.
Member State
sets of out-of-
commerce works or other
subject-matter when there is
available evidence to presume
that they predominantly consist
of works or other subject-
matter of third countries, unless
the concerned collective
management organisation is
sufficiently representative for
12513/18
BM/np
58
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
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 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 projects (27) As mass
The contracting
projects can entail significant
can entail significant investments
cultural heritage institutions
investments by cultural heritage
by cultural heritage institutions,
and collective management
institutions, any licences granted any licences granted under the
organisations should remain
under the mechanisms provided
mechanisms provided for in this
free to agree on the territorial
for in this Directive should not
Directive should not prevent them
scope of the licence, the licence
prevent them from generating
from generating reasonable
fee and the allowed uses. Uses
reasonable revenues in order to
revenues in order to cover
covered by such licence should
cover the costs of the licence and
covering the costs of the licence
not be for profit making
the costs of digitising and
and the costs of digitising and
purpose, including when copies
disseminating the works and other disseminating the works and other
are distributed by the cultural
subject-matter covered by the
subject-matter covered by the
heritage institution, such as in
the case of promotional
12513/18
BM/np
59
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
licence.
licence.
material about an exhibition. At
the same time, as the digitisation
projects
of the collections of
cultural heritage institutions
can entail significant investments
by cultural heritage institutions,
any licences granted under the
mechanisms provided for in this
Directive should not prevent
them
cultural heritage
institutions from generating
reasonable revenues in order to
cover
for the purposes of
covering the costs of the licence
and the costs of digitising and
disseminating the works and other
subject-matter covered by the
licence.
55.
(28) Information regarding the
(28) Information regarding the
(28) Information regarding the
future and ongoing use of out-of-
future and ongoing use of out-of-
future and ongoing use of out-of-
commerce works and other
commerce works and other
commerce works and other
subject-matter by cultural heritage subject-matter by cultural heritage subject-matter by cultural
institutions on the basis of the
institutions on the basis of the
heritage institutions on the basis
licensing mechanisms provided
licensing mechanisms
or of the
of the licensing mechanisms
for in this Directive and the
exception provided for in this
provided for in this Directive and
arrangements in place for all
Directive and the arrangements in the arrangements in place for all
rightholders to exclude the
place for all rightholders to
rightholders to exclude the
application of licences to their
exclude the application of
application of licences to their
12513/18
BM/np
60
ANNEX
ECOMP.3.B
EN
link to page 61
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
works or other subject-matter
licences
or of the exception to
works or other subject-matter
should be adequately publicised.
their works or other subject-
should be adequately publicised.
This is particularly important
matter should be adequately
both before a licence is granted
when uses take place across
publicised. This is particularly
and during the operation of the
borders in the internal market. It
important when uses take place
licence as appropriate. This is
is therefore appropriate to make
across borders in the internal
particularly important when uses
provision for the creation of a
market. It is therefore appropriate take place across borders in the
single publicly accessible online
to make provision for the creation internal market. It is therefore
portal for the Union to make such of a single publicly accessible
appropriate to make provision for
information available to the
online portal for the Union to
the creation of a single publicly
public for a reasonable period of
make such information available
accessible online portal for the
time before the cross-border use
to the public for a reasonable
Union to make such information
takes place. Under Regulation
period of time before the cross-
available to the public for a
(EU) No 386/2012 of the
border use takes place. Under
reasonable period of time before
European Parliament and of the
Regulation (EU) No 386/2012 of the cross-border use takes place.
Council11, the European Union
the European Parliament and of
This portal should facilitate the
Intellectual Property Office is
the Council11, the European
possibility for rightholders to
entrusted with certain tasks and
Union Intellectual Property Office
exclude the application of
activities, financed by making use is entrusted with certain tasks and
licences to their works or other
of its own budgetary measures,
activities, financed by making use
subject-matter. Under
aiming at facilitating and
of its own budgetary measures,
Regulation (EU) No 386/2012 of
supporting the activities of
aiming at facilitating and
the European Parliament and of
national authorities, the private
supporting the activities of
the Council
11, the European
sector and Union institutions in
national authorities, the private
Union Intellectual Property
11
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).
12513/18
BM/np
61
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
the fight against, including the
sector and Union institutions in
Office is entrusted with certain
prevention of, infringement of
the fight against, including the
tasks and activities, financed by
intellectual property rights. It is
prevention of, infringement of
making use of its own budgetary
therefore appropriate to rely on
intellectual property rights. It is
measures
means, aiming at
that Office to establish and
therefore appropriate to rely on
facilitating and supporting the
manage the European portal
that Office to establish and
activities of national authorities,
making such information
manage the European portal
the private sector and Union
available.
making such information
institutions in the fight against,
available.
including the prevention of,
infringement of intellectual
property rights. It is therefore
appropriate to rely on that Office
to establish and manage the
European portal making such
information available.
In
addition to making the
information available through
the portal, further appropriate
publicity measures may need to
be taken on a case-by-case basis
in order to increase the
awareness of affected
rightholders, for example
through the use of additional
channels of communication to
reach a wider public. The
necessity, the nature and the
geographic scope of the
additional publicity measures
12513/18
BM/np
62
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
should depend on the
characteristics of the relevant
out-of-commerce works or
other subject-matter, the terms
of the licences and the existing
practices in Member States.
Publicity measures should be
effective without the need to
inform each rightholder
individually.
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 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
12513/18
BM/np
63
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
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 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
12513/18
BM/np
64
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
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 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
12513/18
BM/np
65
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
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
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
12513/18
BM/np
66
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
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 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
12513/18
BM/np
67
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
that have not authorised the
organisation that concludes the
agreement, as long as it
guarantees sufficient protection
of the 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 makes the required
licensing transaction, i.e. a
12513/18
BM/np
68
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
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
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
12513/18
BM/np
69
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
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 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
12513/18
BM/np
70
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
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 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
12513/18
BM/np
71
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
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 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
12513/18
BM/np
72
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
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
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 the
licensing mechanisms
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
12513/18
BM/np
73
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
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.
65.
(29) On-demand services have
(29) On-demand services have
(29)
Video-on-demand services
the potential to play a decisive
the potential to play a decisive
have the potential to play a
role in the dissemination of
role in the dissemination of
decisive role in the dissemination
European works across the
European works across the
of European
audiovisual works
European Union. However,
European Union. However,
across the European Union.
agreements on the online
agreements on the online
However, agreements
the
exploitation of such works may
exploitation of such works may
availability of those works, in
face difficulties related to the
face difficulties related to the
particular European works, on
licensing of rights. Such issues
licensing of rights. Such issues
video-on-demand services
may, for instance, appear when
may, for instance, appear when
remains limited. Agreements on
the holder of the rights for a given the holder of the rights for a given the online exploitation of such
territory is not interested in the
territory is not interested in the
works may
be difficult to
online exploitation of the work or online exploitation of the work or
conclude due to issues face
where there are issues linked to
where there are issues linked to
difficulties related to the licensing
the windows of exploitation.
the windows of exploitation.
of rights. Such issues may,
for
instance, appear when the holder
of the rights for a given territory
is not interested in the
has low
economic incentive to exploit a
work online exploitation of the
work or where there are issues
12513/18
BM/np
74
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
and does not license or holds
back the online rights, which
can lead to the unavailability of
audiovisual works on video-on-
demand services. Other issues
may be linked to the windows of
exploitation.
66.
(30) To facilitate the licensing of (30) To facilitate the licensing of (30) To facilitate the licensing of
rights in audiovisual works to
rights in audiovisual works to
rights in audiovisual works to
video-on-demand platforms, this
video-on-demand platforms, this
video-on-demand
Directive requires Member States Directive requires Member States platforms
services, this Directive
to set up a negotiation mechanism to
should set up a negotiation
requires Member States to set
allowing parties willing to
mechanism,
managed by an
up
provide for a negotiation
conclude an agreement to rely on
existing or newly established
mechanism allowing parties
the assistance of an impartial
national body, allowing parties
willing to conclude an agreement
body. The body should meet with willing to conclude an agreement to rely on the assistance of an
the parties and help with the
to rely on the assistance of an
impartial body. The body
or of
negotiations by providing
impartial body.
The participation one or more mediators. For that
professional and external advice.
in this negotiation mechanism
purpose, Member States may
Against that background, Member
and the subsequent conclusion
either create a new body or rely
States should decide on the
of agreements should be
on an existing one that fulfils
conditions of the functioning of
voluntary. Where a negotiation
the conditions established by
the negotiation mechanism,
involves parties from different
this Directive. Member States
including the timing and duration
Member States, those parties
may designate one or more
of the assistance to negotiations
should agree beforehand on the competent bodies or mediators.
and the bearing of the costs.
competent Member State, should The body or the mediators
Member States should ensure that
they decide to rely on the
should meet with the parties and
administrative and financial
negotiation mechanism. The
help with the negotiations by
12513/18
BM/np
75
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
burdens remain proportionate to
body should meet with the parties providing professional and
guarantee the efficiency of the
and help with the negotiations by external advice.
The body or the
negotiation forum.
providing professional,
impartial mediators could meet with the
and external advice. Against that
parties to facilitate the start of
background, Member States
negotiations or in the course of
should decide on the conditions of
the negotiations to facilitate the
the functioning of the negotiation
conclusion of an agreement.
mechanism, including the timing
The use of and the participation
and duration of the assistance to
in the negotiation mechanism
negotiations and the bearing
should remain voluntary and
division of the
any costs
arising, should not affect the parties'
and the composition of such
contractual freedom. Against
bodies. Member States should
that background, Member States
ensure that administrative and
should
be free to decide on the
financial burdens remain
conditions of the
concrete
proportionate to guarantee the
functioning of the negotiation
efficiency of the negotiation
mechanism, including the timing
forum.
and duration of the assistance to
negotiations and the bearing of
the costs. Member States should
ensure that administrative and
financial burdens remain
proportionate to guarantee the
efficiency of the negotiation
forum
mechanism.
67.
(30a) The preservation of the
Union’s heritage is of the utmost
importance and should be
12513/18
BM/np
76
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
strengthened for the benefit of
future generations. This should
be achieved notably through the
protection of published heritage.
To this end, a Union legal
deposit should be created in
order to ensure that publications
concerning the Union, such as
Union law, Union history and
integration, Union policy and
Union democracy, institutional
and parliamentary affairs, and
politics, and, thereby, the
Union’s intellectual record and
future published heritage, are
collected systematically. Not only
should such heritage be
preserved through the creation
of a Union archive for
publications dealing with Union-
related matters, but it should also
be made available to Union
citizens and future generations.
The European Parliament
Library, as the Library of the
only Union institution directly
representing Union citizens,
should be designated as the
Union depository library. In
12513/18
BM/np
77
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
order not to create an excessive
burden on publishers, printers
and importers, only electronic
publications, such as e-books, e-
journals and e-magazines should
be deposited in the European
Parliament Library, which
should make available for
readers publications covered by
the Union legal deposit at the
European Parliament Library
for the purpose of research or
study and under the control of
the European Parliament
Library. Such publications
should not be made available
online externally.
68.
(31) A free and pluralist press is (31) A free and pluralist press is (31) A free and pluralist press is
essential to ensure quality
essential to ensure quality
essential to ensure quality
journalism and citizens' access to journalism and citizens' access to journalism and citizens' access to
information. It provides a
information. It provides a
information. It provides a
fundamental contribution to
fundamental contribution to
fundamental contribution to
public debate and the proper
public debate and the proper
public debate and the proper
functioning of a democratic
functioning of a democratic
functioning of a democratic
society. In the transition from
society.
The increasing
society. In the transition from
print to digital, publishers of press
imbalance between powerful
print to digital, publishers
The
publications are facing problems
platforms and press publishers,
wide availability of press
in licensing the online use of their
which can also be news agencies, publications online has given
12513/18
BM/np
78
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
publications and recouping their
has already led to a remarkable
rise to the emergence of new
investments. In the absence of
regression of the media
online services, such as news
recognition of publishers of press
landscape on a regional level. In
aggregators or media
publications as rightholders,
the transition from print to digital,
monitoring services, for which
licensing and enforcement in the
publishers
and news agencies of
the reuse of press publications
digital environment is often
press publications are facing
constitutes an important part of
complex and inefficient.
problems in licensing the online
their business models and a
use of their publications and
source of revenues. Publishers
recouping their investments. In
of press publications are facing
the absence of recognition of
problems in licensing the online
publishers of press publications as use of their publications and
rightholders, licensing and
recouping
to the providers of
enforcement in the digital
these kind of services, making it
environment is often complex and
more difficult for them to
inefficient.
recoup their investments. In the
absence of recognition of
publishers of press publications
as rightholders, licensing and
enforcement
of rights in press
publications regarding online
uses by information society
service providers in the digital
environment is
are often complex
and inefficient.
69.
(32) The organisational and
(32) The organisational and
(32) The organisational and
financial contribution of
financial contribution of
financial contribution of
publishers in producing press
publishers in producing press
publishers in producing press
publications needs to be
publications needs to be
publications needs to be
12513/18
BM/np
79
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
recognised and further
recognised and further
recognised and further
encouraged to ensure the
encouraged to ensure the
encouraged to ensure the
sustainability of the publishing
sustainability of the publishing
sustainability of the publishing
industry.It is therefore necessary
industry
and thereby to
industry. It is therefore necessary
to provide at Union level a
guarantee the availability of
to provide at Union level a
harmonised legal protection for
reliable information. It is
harmonised legal
le-gal protection
press publications in respect of
therefore necessary
for Member
for press publications in respect
digital uses. Such protection
States to provide at Union level a of digital
online uses
by
should be effectively guaranteed
harmonised legal protection for
information society service
through the introduction, in Union press publications in respect of
providers, leaving unaffected
law, of rights related to copyright
the Union for digital uses. Such
current copyright rules in
for the reproduction and making
protection should be effectively
Union law applicable to uses of
available to the public of press
guaranteed through the
press publications by other
publications in respect of digital
introduction, in Union law, of
users, including individual
uses.
rights related to copyright for the
users. Such protection should be
reproduction and making
effectively guaranteed through
available to the public of press
the introduction, in Union law, of
publications in respect of digital
rights related to copyright for the
uses
in order to obtain fair and
reproduction and making
proportionate remuneration for
available to the public of press
such uses. Private uses should be publications in respect of digital
excluded from this reference. In uses
published by publishers
addition, the listing in a search
established in a Member State
engine should not be considered in respect of online uses by
as fair and proportionate
information society service
remuneration.
providers within the meaning of
Directive (EU) 2015/1535 of the
12513/18
BM/np
80
ANNEX
ECOMP.3.B
EN
link to page 81
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
European Parliament and of
the Council.12 The legal
protection for press
publications provided for by
this directive should only
benefit publishers established
in a Member State in the
meaning of the Treaty of the
functioning of the European
Union, i.e. when they have their
registered office, central
administration or principal
place of business within the
Union.
70.
(33) For the purposes of this
(33) For the purposes of this
(33) For the purposes of this
Directive, it is necessary to define Directive, it is necessary to define Directive, it is necessary to define
the concept of press publication in the concept of press publication in the concept of press publication
a way that embraces only
a way that embraces only
in a way that embraces only
journalistic publications,
journalistic publications,
journalistic publications,
published by a service provider,
published by a service provider,
published by a service provider,
periodically or regularly updated periodically or regularly updated
periodically or regularly updated
in any media, for the purpose of
in any media, for the purpose of
in any media, for the purpose of
informing or entertaining. Such
informing or entertaining. Such
informing or entertaining.
in any
publications would include, for
publications would include, for
media, including on paper, in
12
Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of
information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1–15).
12513/18
BM/np
81
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
instance, daily newspapers,
instance, daily newspapers,
the context of an economic
weekly or monthly magazines of weekly or monthly magazines of
activity which constitutes a
general or special interest and
general or special interest and
provision of services under
news websites. Periodical
news websites. Periodical
Union law. The press
publications which are published publications which are published
publications to be covered are
for scientific or academic
for scientific or academic
those whose purpose is to
purposes, such as scientific
purposes, such as scientific
inform the general public and
journals, should not be covered
journals, should not be covered
which are periodically or
by the protection granted to press by the protection granted to press
regularly updated. Such
publications under this Directive. publications under this Directive. publications would include, for
This protection does not extend to This protection does not extend to instance, daily newspapers,
acts of hyperlinking which do not acts of hyperlinking which do not weekly or monthly magazines of
constitute communication to the
constitute communication to the
general or special interest and
public.
public.
The protection shall also news websites.
Press
not extend to factual information publications contain mostly
which is reported in journalistic literary works but increasingly
articles from a press publication include other types of works
and will therefore not prevent
and subject-matter, notably
anyone from reporting such
photographs and videos.
factual information.
Periodical publications wich are
published for scientific or
academic purposes, such as
scientific journals, should not be
covered by the protection granted
to press publications under this
Directive. This protection does
not extend to acts of hyperlinking
which do not constitute
12513/18
BM/np
82
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
communication to the public.
71.
(34) The rights granted to the
(34) The rights granted to the
(34) The rights granted to the
publishers of press publications
publishers of press publications
publishers of press publications
under this Directive should have
under this Directive should have
under this Directive should have
the same scope as the rights of
the same scope as the rights of
the same scope as the rights of
reproduction and making
reproduction and making
reproduction and making
available to the public provided
available to the public provided
available to the public provided
for in Directive 2001/29/EC,
for in Directive 2001/29/EC,
for in Directive 2001/29/EC,
insofar as digital uses are
insofar as digital uses are
insofar as digital
online uses are
concerned. They should also be
concerned. They
Member States
concerned.
by information
subject to the same provisions on should also be
able to subject
society service providers are
exceptions and limitations as
those rights to the same
concerned. They should not
those applicable to the rights
provisions on exceptions and
extend to acts of hyperlinking
provided for in Directive
limitations as those applicable to
when they do not constitute
2001/29/EC including the
the rights provided for in
communication to the public.
exception on quotation for
Directive 2001/29/EC including
They should also be subject to the
purposes such as criticism or
the exception on quotation for
same provisions on exceptions
review laid down in Article
purposes such as criticism or
and limitations as those
5(3)(d) of that Directive.
review laid down in Article
applicable to the rights provided
5(3)(d) of that Directive.
for in Directive 2001/29/EC
,
including the exception on
quotation for purposes such as
criticism or review laid down in
Article 5(3)(d) of that Directive.
72.
(34a) Uses of press publications
by information society service
providers can consist of the use
12513/18
BM/np
83
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
of entire publications or articles
but also of parts of press
publications. Such uses of parts
of press publications have also
gained economic relevance. At
the same time, where such parts
are insubstantial, the use
thereof by information society
service providers may not
undermine the investments
made by publishers of press
publications in the production
of content. Furthermore,
insubstantial parts of press
publications are not usually the
expression of the intellectual
creation of their authors, in
accordance with the case law of
the Court of Justice of the
European Union. Therefore, it
is appropriate to provide that
the use of insubstantial parts of
press publications should not
fall within the scope of the
rights provided for in this
Directive. To determine the
insubstantial nature of parts of
press publications for the
purposes of this Directive,
12513/18
BM/np
84
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
Member States may take into
account whether these parts are
the expression of the
intellectual creation of their
authors or whether these parts
are limited to individual words
or very short excerpts, without
independent economic
significance, or both criteria.
73.
(35) The protection granted to
(35) The protection granted to
(35) The protection granted to
publishers of press publications
publishers of press publications
publishers of press publications
under this Directive should not
under this Directive should not
under this Directive should not
affect the rights of the authors and affect the rights of the authors and affect the rights of the authors
other rightholders in the works
other rightholders in the works
and other rightholders in the
and other subject-matter
and other subject-matter
works and other subject-matter
incorporated therein, including as incorporated therein, including as incorporated therein, including as
regards the extent to which
regards the extent to which
regards the extent to which
authors and other rightholders can authors and other rightholders can authors and other rightholders can
exploit their works or other
exploit their works or other
exploit their works or other
subject-matter independently
subject-matter independently
subject-matter independently
from the press publication in
from the press publication in
from the press publication in
which they are incorporated.
which they are incorporated.
which they are incorporated.
Therefore, publishers of press
Therefore, publishers of press
Therefore, publishers of press
publications should not be able to publications should not be able to publications should not be able to
invoke the protection granted to
invoke the protection granted to
invoke the protection granted to
them against authors and other
them against authors and other
them against authors and other
rightholders. This is without
rightholders. This is without
rightholders.
or against other
prejudice to contractual
prejudice to contractual
authorised users of the same
12513/18
BM/np
85
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
arrangements concluded between arrangements concluded between
works and other subject-
the publishers of press
the publishers of press
matter. This is without prejudice
publications, on the one side, and publications, on the one side, and to contractual arrangements
authors and other rightholders, on authors and other rightholders, on concluded between the publishers
the other side.
the other side.
Notwithstanding
of press publications, on the one
the fact that authors of the works side, and authors and other
incorporated in a press
rightholders, on the other side.
publication receive an
appropriate reward for the use of
their works on the basis of the
terms for licensing of their work
to the press publisher, authors
whose work is incorporated in a
press publication should be
entitled to an appropriate share
of the new additional revenues
press publishers receive for
certain types of secondary use of
their press publications by
information society service
providers in respect of the rights
provided for in Article 11(1) of
this Directive. The amount of the
compensation attributed to the
authors should take into account
the specific industry licensing
standards regarding works
incorporated in a press
publication which are accepted
12513/18
BM/np
86
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
as appropriate in the respective
Member State; and the
compensation attributed to
authors should not affect the
licensing terms agreed between
the author and the press
publisher for the use of the
author’s article by the press
publisher.
74.
(36) Publishers, including those (36) Publishers, including those
(36) Publishers, including those
of press publications, books or
of press publications, books or
of press publications, books or
scientific publications, often
scientific publications, often
and scientific publications, often
operate on the basis of the
music publications, operate on
operate on the basis of the
transfer of authors' rights by
the basis of the transfer of
transfer of authors' rights by
means of contractual agreements. authors' rights by means of
means of contractual agreements
In this context, publishers make
contractual agreements
with
or statutory provisions. In this
an investment with a view to the
authors. In this context,
context, publishers make an
exploitation of the works
publishers make an investment
investment with a view to the
contained in their publications
and acquire rights, in some fields exploitation of the works
and may in some instances be
including rights to claim a share contained in their publications
deprived of revenues where such
of compensation within joint
and may in some instances be
works are used under exceptions
collective management
deprived of revenues where such
or limitations such as the ones for
organisations of authors and
works are used under exceptions
private copying and reprography.
publishers, with a view to the
or limitations
, such as the ones for
In a number of Member States
exploitation of the works
private copying and reprography.
,
compensation for uses under
contained in their publications
including the corresponding
those exceptions is shared
and may in some instances be
existing national schemes for
between authors and publishers.
therefore also find themselves
reprography in the Member
12513/18
BM/np
87
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
In order to take account of this
being deprived of revenues where
States, or under public lending
situation and improve legal
such works are used under
schemes. In a number of Member
certainty for all concerned parties, exceptions or limitations such as
States
the compensation
or
Member States should be allowed the ones for private copying and
remuneration for
such uses
to determine that, when an author reprography. In a
large number of under those exceptions is shared
has transferred or licensed his
Member States compensation for between authors and publishers.
rights to a publisher or otherwise uses under those exceptions is
In order to take account of this
contributes with his works to a
shared between authors and
situation and improve legal
publication and there are systems publishers. In order to take
certainty for all concerned parties,
in place to compensate for the
account of this situation and
to
Member States should be allowed
harm caused by an exception or
improve legal certainty for all
but not obliged to determine that,
limitation, publishers are entitled concerned parties, Member States when an author has transferred or
to claim a share of such
should be allowed to determine
licensed his rights to a publisher
compensation, whereas the
that, when an author has
or a collective management
burden on the publisher to
transferred or licensed his rights
organisation that jointly
substantiate his claim should not
to a publisher or otherwise
represents authors and
exceed what is required under the contributes with his works to a
publishers or otherwise
system in place.
publication and there are systems contributes with his works to a
in place to compensate for the
publication and there are systems
harm caused by an exception or
in place to compensate for the
limitation, publishers are entitled harm caused by an exception or
to claim a share of such
limitation, publishers are entitled
compensation, whereas the
to claim a share of such
burden on the publisher to
compensation, whereas
. The
substantiate his claim should not
same possibility should exist for
exceed what is required under the
remuneration for public
system in place.
provide an
lending, while Member States
equivalent compensation-sharing should remain free to decide not
system if such a system was in
to provide publishers with such
12513/18
BM/np
88
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
operation in that Member State
remuneration. Member States
before 12 November 2015. The
should remain free to determine
share between authors and
the burden on the publisher to
publishers of such compensation substantiate his claim should not
could be set in the internal
exceed what is required under
for
distribution rules of the
the system
compensation or
collective management
remuneration and to lay down
organisation acting jointly on
the conditions as to the sharing
behalf of authors and publishers, of this compensation or
or set by Members States in law
remuneration between authors
or regulation, in accordance with and publishers in
the equivalent system that was in place
accordance with their
operation in that Member State
national systems.
before 12 November 2015. This
provision is without prejudice to
the arrangements in the Member
States concerning public lending
rights, the management of rights
not based on exceptions or
limitations to copyright, such as
extended collective licensing
schemes, or concerning
remuneration rights on the basis
of national law.
75.
(36 a) Cultural and creative
industries (CCIs) play a key role
in reindustrialising Europe, are
a driver for growth and are in a
12513/18
BM/np
89
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
strategic position to trigger
innovative spill-overs in other
industrial sectors. Furthermore
CCIs are a driving force for
innovation and development of
ICT in Europe. Cultural and
creative industries in Europe
provide more than 12 million
full-time jobs, which amounts to
7,5 % of the Union's work force,
creating approximately EUR 509
billion in value added to GDP
(5,3 % of the EU's total GVA).
The protection of copyright and
related rights are at the core of
the CCI's revenue.
76.
(37) Over the last years, the
(37) Over the last years, the
(37) Over the last years, the
functioning of the online content functioning of the online content functioning of the online content
marketplace has gained in
marketplace
market has gained in marketplace has gained in
complexity. Online services
complexity. Online services
complexity. Online
content
providing access to copyright
providing access to copyright
sharing services providing access
protected content uploaded by
protected content uploaded by
to
a large amount of copyright
-
their users without the
their users without the
protected content uploaded by
involvement of right holders have involvement of right holders have their users without the
flourished and have become main flourished and have become main involvement of right holders have
sources of access to content
sources of access to
copyright
flourished
developed and have
online. This affects rightholders'
protected content online.
Online
become main sources of access to
possibilities to determine
services are means of providing
content online. This
Legal
12513/18
BM/np
90
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
whether, and under which
wider access to cultural and
uncertainty exists as to whether
conditions, their work and other
creative works and offer great
such services engage in
subject-matter are used as well as
opportunities for cultural and
copyright relevant acts and
their possibilities to get an
creative industries to develop
need to obtain authorisations
appropriate remuneration for it.
new business models. However,
from rightholders for the
although they allow for diversity content uploaded by their users
and ease of access to content,
who do not hold the relevant
they also generate challenges
rights in the uploaded content,
when copyright protected content without prejudice to the
is uploaded without prior
application of exceptions and
authorisation from rightholders.
limitations provided for in
This affects rightholders'
Union Law. This situation
possibilities to determine
affects rightholders' possibilities
whether, and under which
to determine whether, and under
conditions, their work and other
which conditions, their work and
subject-matter are used as well as other subject-matter are
content
their possibilities to get an
is used as well as their
appropriate remuneration for it,
possibilities to get an appropriate
since some user uploaded
remuneration for it.
It is
content services do not enter into therefore important to foster
licensing agreements on the
the development of the licensing
basis that they claim to be
market between rightholders
covered by the “safe-harbour”
and online content sharing
exemption set out in Directive
service providers. These
2000/31/EC.
licensing agreements should be
fair and keep a reasonable
balance for both parties.
Rightholders should receive an
appropriate reward for the use
12513/18
BM/np
91
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
of their works or other subject
matter.
77.
(37a) Certain information
(37a) The definition of an online
society services, as part of their
content sharing service
normal use, are designed to give provider under this Directive
access to the public to copyright
targets only online services
protected content or other
which play an important role
subject-matter uploaded by their on the online content market by
users. The definition of an
competing with other online
online content sharing service
content services, such as online
provider under this Directive
audio and video streaming
shall cover information society
services, for the same
service providers one of the main audiences. The services covered
purposes of which is to store and by this intervention are those
give access to the public or to
the main or one of the main
stream significant amounts of
purposes of which is to provide
copyright protected content
access to a large amount of
uploaded / made available by its
copyright-protected content
users, and that optimise content, uploaded by their users with
and promote for profit making
the purpose of obtaining profit
purposes, including amongst
therefrom, either directly or
others displaying, tagging,
indirectly, by organising it and
curating, sequencing, the
promoting it in order to attract
uploaded works or other subject- more audiences. Organising
matter, irrespective of the means and promoting content involves
used therefor, and therefore act
for example indexing the
in an active way. As a
content, presenting it in a
consequence, they cannot benefit certain manner and
12513/18
BM/np
92
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
from the liability exemption
categorising it, as well as using
provided for in Article 14 of
targeted promotion on it. The
Directive 2000/31/EC. The
definition does not include
definition of online content
services whose main purpose is
sharing service providers under
not to provide access to
this Directive does not cover
copyright protected content
microenterprises and small sized with the purpose of obtaining
enterprises within the meaning
profit from this activity. These
of Title I of the Annex to
include, for instance, electronic
Commission Recommendation
communication services within
2003/361/EC and service
the meaning of Regulation
providers that act in a non-
2015/2120/EU, including
commercial purpose capacity
internet access providers, as
such as online encyclopaedia,
well as providers of cloud
and providers of online services
services which allow users, to
where the content is uploaded
upload content for their own
with the authorisation of all right use, such as cyberlockers, or
holders concerned, such as
online marketplaces whose
educational or scientific
main activity is online retail
repositories. Providers of cloud
and not giving access to
services for individual use which copyright protected content.
do not provide direct access to
Nor does this definition cover
the public, open source software websites which store and
developing platforms, and online provide access to content for
market places whose main
non-for-profit purposes, such as
activity is online retail of
online encyclopaedias, scientific
physical goods, should not be
or educational repositories or
considered online content
open source software
sharing service providers within developing platforms which do
12513/18
BM/np
93
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
the meaning of this Directive.
not store and give access to
content for profit making
purposes. In order to ensure the
high level of copyright
protection and to avoid the
possible application of the
liability exemption mechanism
provided for in this Directive,
this Directive should not apply
to services the main purpose of
which is to engage in or to
facilitate copyright piracy.
78.
(37b) The assessment of
whether an online content
sharing service provider stores
and gives access to a large
amount of copyright-protected
content needs to be made on a
case-by-case basis and take
account of a combination of
elements, such as the audience
of the service and the number
of files of copyright-protected
content uploaded by the users
of the services.
79.
(38) Where information society
(38) Where information
(38)
This Directive clarifies
service providers store and
society
Online content sharing
under which conditions the
12513/18
BM/np
94
ANNEX
ECOMP.3.B
EN
link to page 95
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
provide access to the public to
service providers store and
Where information
copyright protected works or
provide access to the public to
society
online content sharing
other subject-matter uploaded by copyright protected works or
service providers store and
their users, thereby going beyond other subject-matter uploaded by provide access to copyright
the mere provision of physical
their users, thereby going beyond protected works or other subject-
facilities and performing an act of the mere provision of physical
matter uploaded by their users,
communication to the public, they facilities and performing
perform thereby going beyond the mere
are obliged to conclude licensing an act of communication to the
provision of physical facilities
agreements with rightholders,
public, they are obliged to
and
and performing
are engaging in
unless they are eligible for the
therefore are responsible for
an act of communication to the
liability exemption provided in
their content and should
public
or making available to
Article 14 of Directive
therefore conclude
fair and
the public within the meaning
2000/31/EC of the European
appropriate licensing agreements
of Article 3(1) and (2) of
Parliament and of the Council
13.
with rightholders, unless they are
Directive 2001/29/EC they are
eligible for.
Where licensing
obliged to conclude licensing
agreements are concluded, they
agreements with rightholders,
should also cover, to the same
unless they are eligible for the
extent and scope, the liability
liability exemption provided in
exemption provided in
of users
Article 14 of Directive
when they are acting in a non-
2000/31/EC of the European
commercial capacity. In
Parliament and of the Council
. It
accordance with Article 14 of
does not change the concept of
Directive 2000/31/EC of the
communication to the public or
European Parliament and of the
of making available to the
Council
11(2a) the responsibility public under Union law nor
13
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular
electronic commerce, in the Internal Market (OJ L 178, 17.7.2000, p. 1–16).
12513/18
BM/np
95
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
of online content sharing
does it affect the possible
providers pursuant to Article 13
application of Article 3(1) and
does not extend to acts of
(2) of Directive 2001/29/EC to
hyperlinking in respect of press
other services using copyright-
publications. The dialogue
protected content.
between stakeholders is essential
in the digital world. They should
define best practices to ensure
the functioning of licensing
agreements and cooperation
between online content sharing
service providers and
rightholders. Those best
practices should take into
account the extent of the
copyright infringing content on
the service.
80.
In respect of Article 14, it is
Deleted
Deleted, partly moved to
necessary to verify whether the
recital (37a) Council's text – see
service provider plays an active
row 77
role, including by optimising the
presentation of the uploaded
works or subject-matter or
promoting them, irrespective of
the nature of the means used
therefor.
12513/18
BM/np
96
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
81.
In order to ensure the functioning
Deleted
Deleted, partly moved to
of any licensing agreement,
recital (38c) Council's text – see
information society service
row 84
providers storing and providing
access to the public to large
amounts of copyright protected
works or other subject-matter
uploaded by their users should
take appropriate and
proportionate measures to ensure
protection of works or other
subject-matter, such as
implementing effective
technologies. This obligation
should also apply when the
information society service
providers are eligible for the
liability exemption provided in
Article 14 of Directive
2000/31/EC.
82.
(38a) [Renumbered - in ST
9134/18 recital 38(b)]
When online content sharing
service providers communicate
to the public, they should not
benefit from the limited liability
12513/18
BM/np
97
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
provided for in Article 14 of
Directive 2000/31/EC for the
purposes of copyright relevant
acts. This should not affect the
possibility for the same online
content sharing providers to
benefit from such exemption of
liability for other purposes than
copyright when they are
providing their services and
host content at the request of
their users in accordance with
Article 14 of Directive
2000/31/EC.
83.
(38b) [Renumbered - in ST
9134/18 recital (38c)]
Taking into account the fact
that online content sharing
service providers give access to
content which is not uploaded
by them but by their users, it is
appropriate to provide that, for
cases where no authorisation
has been obtained by the
services and, for the purpose of
this Directive, they should not
be liable for unauthorised acts
12513/18
BM/np
98
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
in specific, well-defined
circumstances, when they
demonstrate that they have
acted in a diligent manner with
the objective to prevent such
unauthorised acts, without
prejudice to remedies under
national law for cases other
than liability for copyright
infringements and to the
possibility for national courts
or administrative authorities of
issuing injunctions. In
particular, they should not be
liable if some unauthorised
content is available on their
services despite their best
efforts to prevent its availability
by applying effective and
proportionate measures based
on the information provided by
rightholders. In addition, for
the online content sharing
service providers not to be
liable, they should also in any
case, upon notification by
rightholders of specific
unauthorised works or other
subject-matter, act
12513/18
BM/np
99
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
expeditiously to remove or
disable access to these and
make their best efforts to
prevent their future
availability.
84.
(38c) [Renumbered - in ST
9134/18 recital (38ca)]
Appropriate collaboration
carried out in good faith
between online content sharing
service providers and
rightholders is essential for the
effective application of the
measures by the online content
sharing service providers.
These service providers should
be transparent towards
rightholders with regard to the
deployed measures. As different
measures may be used by the
online content sharing service
providers, they should provide
rightholders with appropriate
information on the type of
measures used and the way
they operate, including for
12513/18
BM/np
100
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
example information on the
success rate of the measures.
Such information should be
sufficiently specific to provide
enough transparency for
rightholders and allow
cooperation to ensure effective
functioning of the measures,
without prejudice to the
business secrets of service
providers. Service providers
should however not be required
to provide rightholders with
detailed and individualised
information for each work and
other subject matter identified.
This is without prejudice to
contractual arrangements,
which may contain more
specific provisions on the
information to be provided
where agreements are
concluded between service
providers and rightholders. On
the other hand, rightholders
should provide the service
providers with necessary and
relevant data for the
application of the measures to
12513/18
BM/np
101
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
their specific unauthorised
works or other subject matter
taking also into account the size
of rightholders and the type of
their works and other subject
matter. As long as no data for
the application of the measures
or no notification concerning
removal or disabling access to
specific unauthorised works or
other subject matter has been
provided by rightholders and,
as a result, online content
sharing service providers
cannot take the measures or
expeditious action as set out in
this Directive, these service
providers should not be liable
for unauthorised acts of
communication to the public or
of making available to the
public.
85.
(38d) Where online content
sharing service providers
obtain authorisations, including
via licensing agreements, for
the use on the service of content
uploaded by the users of the
12513/18
BM/np
102
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
services, these authorisations
should also cover the copyright
relevant acts in respect of
uploads by the users but only in
cases where the users act in
their private capacity and for
non-commercial purposes, such
as sharing their content without
any profit making purpose.
86.
(39) Collaboration between
(39) Collaboration between
(39) Moved up to
information society service
information society
Member
recital (38c)[which was
providers storing and providing
States should provide that where
recital (38ca) in ST
access to the public to large
right holders do not wish to
9134/18]
amounts of copyright protected
conclude licensing agreements,
works or other subject-matter
online content sharing service
uploaded by their users and
providers storing and providing
rightholders is essential for the
access to the public to large
functioning of technologies, such amounts of copyright
and right
as content recognition
holders should cooperate in good
technologies. In such cases,
faith in order to ensure that
rightholders should provide the
unauthorised protected works or
necessary data to allow the
other subject matter uploaded by
,
services to identify their content
are not available on their users
and the services should be
and rightholders is essential for
transparent towards rightholders
the functioning of technologies,
with regard to the deployed
such as content recognition
12513/18
BM/np
103
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
technologies, to allow the
technologies. In such cases,
assessment of their
rightholders should provide the
appropriateness. The services
necessary data to allow the
should in particular provide
services.
Cooperation between
rightholders with information on
online to identify their content
the type of technologies used, the and the services should be
way they are operated and their
transparent towards rightholders
success rate for the recognition of with regard to the deployed
rightholders' content. Those
technologies, to allow the
technologies should also allow
assessment of their
rightholders to get information
appropriateness. The services
from the information society
should in particular provide
service providers on the use of
rightholders with information on
their content covered by an
the type of technologies used, the
agreement.
way they are operated and their
success rate for the recognition of
rightholders' content. Those
technologies should also allow
rightholders to get information
from the information society
service providers on the use of
their content
and right holders
should not lead to preventing the
availability of non-infringing
works or other protected subject
matter, including those covered
by an agreement
exception or
limitation to copyright.
12513/18
BM/np
104
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
87.
(39a) Members States should
(39a) [Renumbered - in ST
ensure that online content
9134/18 recital (39b)]
sharing service providers
referred to in paragraph 1 put in The measures taken by the
place effective and expeditious
online content sharing service
complaints and redress
providers should be without
mechanisms that are available to prejudice to the application of
users in case the cooperation
exceptions and limitations to
referred to in paragraph 2a leads copyright, including in
to unjustified removals of their
particular those which
content. Any complaint filed
guarantee the freedom of
under such mechanisms should
expression of users. For that
be processed without undue
purpose the service providers
delay. Right holders should
should put in place mechanisms
reasonably justify their decisions allowing users to complain
to avoid arbitrary dismissal of
about the blocking or removal
complaints. Moreover, in
of uploaded content that could
accordance with Directive
benefit from an exception or
95/46/EC, Directive 2002/58/EC limitation to copyright. Replies
and the General Data Protection to the users’ complaints should
Regulation, the cooperation
be provided in a timely manner.
should not lead to any
To make these mechanisms
identification of individual users function, cooperation from
nor the processing of their
rightholders is needed, in
personal data. Member States
particular with regard to the
should also ensure that users
assessment of the complaints
12513/18
BM/np
105
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
have access to an independent
submitted and justifications for
body for the resolution of
the removal of users’ content.
disputes as well as to a court or
Member States should remain
another relevant judicial
free to put in place independent
authority to assert the use of an
authorities for assessing the
exception or limitation to
complaints submitted by users
copyright rules.
and making decisions on their
validity. The redress
mechanism should be without
prejudice to the right of the
parties to take action before a
court.
88.
(39b) As soon as possible after
(39b) [Renumbered - in ST
the entry into force of this
9134/18 recital (39c)]
Directive, the Commission and
the Member States should
In order to foster best practices
organise dialogues between
with regard to the measures to
stakeholders to harmonise and to be taken by online content
define best practices. They
sharing service providers to
should issue guidance to ensure avoid liability for unauthorised
the functioning of licensing
copyright acts, stakeholder
agreements and on cooperation
dialogues should be encouraged
between online content sharing
by the Member States and the
service providers and right
Commission. In order to give
holders for the use of their works more clarity to the parties some
or other subject matter within the guidance should also be
meaning of this Directive. When provided by the Commission on
defining best practices, special
the implementation of the
12513/18
BM/np
106
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
account should be taken of
measures including as to which
fundamental rights, the use of
measures could be considered
exceptions and limitations.
to be proportionate for
Special focus should also be
different types of content. For
given to ensuring that the burden the purposes of the guidance
on SMEs remains appropriate
the Commission should consult
and that automated blocking of
relevant stakeholders, including
content is avoided.
user organisations and
technology providers, and take
into account the developments
on the market.
89.
(39c) Member States should
ensure that an intermediate
mechanism exists enabling
service providers and
rightholders to find an amicable
solution to any dispute arising
from the terms of their
cooperation agreements. To that
end, Member States should
appoint an impartial body with
all the relevant competence and
experience necessary to assist the
parties in the resolution of their
dispute.
90.
(39d) As a principle,
rightholders should always
12513/18
BM/np
107
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
receive fair and appropriate
remuneration. Authors and
performers who have concluded
contracts with intermediaries,
such as labels and producers,
should receive fair and
appropriate remuneration from
them, either through individual
agreements and/ or collective
bargaining agreements,
collective management
agreements or rules having a
similar effect, for example joint
remuneration rules. This
remuneration should be
mentioned explicitly in the
contracts according to each
mode of exploitation, including
online exploitation. Members
States should look into the
specificities of each sector and
should be allowed to provide that
remuneration is deemed fair and
appropriate if it is determined in
accordance with the collective
bargaining or joint remuneration
agreement.
12513/18
BM/np
108
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
91.
(40) Certain rightholders such as (40) Certain rightholders such as (40) Certain rightholders such as
authors and performers need
authors and performers need
authors
Authors and performers
information to assess the
information to assess the
need information to assess the
economic value of their rights
economic value of their rights
economic value of their rights
which are harmonised under
which are harmonised under
which are harmonised under
Union law. This is especially the Union law. This is especially the
Union law. This is especially the
case where such rightholders
case where such rightholders
case where such rightholders
grant a licence or a transfer of
grant a licence or a transfer of
natural persons grant a licence
rights in return for remuneration. rights in return for remuneration. or a transfer of rights
for the
As authors and performers tend to As authors and performers tend to
purposes of exploitation in
be in a weaker contractual
be in a weaker contractual
return for remuneration.
This
position when they grant licences position when they grant licences
need does not arise when the
or transfer their rights, they need or transfer their rights, they need
contractual counterpart acts as
information to assess the
information to assess the
end user of the work and does
continued economic value of their continued economic value of their
not exploit the work or
rights, compared to the
rights, compared to the
performance itself, which could
remuneration received for their
remuneration received for their
among others be the case in
licence or transfer, but they often licence or transfer, but they often
some employment contracts.
face a lack of transparency.
face a lack of transparency.
Additionally, this need does not
Therefore, the sharing of adequate Therefore, the sharing of adequate
arise when the exploitation has
information by their contractual
comprehensive and relevant
ceased, or when the author or
counterparts or their successors in information by their contractual
performer has granted licence
title is important for the
counterparts or their successors in
to the general public without
transparency and balance in the
title is important for the
remuneration.
system that governs the
transparency and balance in the
remuneration of authors and
system that governs the
[Last two phrases of recital (40)
performers.
remuneration of authors and
of the COM proposal were moved
performers.
The information that to new recital (40a) of Council's
12513/18
BM/np
109
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
authors and performers are
text - see following row 92]
entitled to expect should be
proportionate and cover all
modes of exploitation, direct and
indirect revenue generated,
including revenues from
merchandising, and the
remuneration due. The
information on the exploitation
should also include information
about the identity of any sub-
licensee or sub-transferee. The
transparency obligation should
nevertheless apply only where
copyright relevant rights are
concerned.
[See Council’s recital (40a) -row
92]
92.
(40a) As authors and performers
tend to be in a weaker contractual
position when they grant licences
or transfer their rights, they need
information to assess the
continued economic value of their
rights, compared to the
remuneration received for their
licence or transfer, but they often
12513/18
BM/np
110
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
face a lack of transparency.
Therefore, the sharing of
adequate information by their
contractual counterparts or their
successors in title is important for
the transparency and balance in
the system that governs the
remuneration of authors and
performers.
The information
should be: timely to allow
access to recent data; adequate
to include information relevant
to the exploitation of the work
or performance in a manner
that is comprehensible to the
author or performer; and
sufficient to assess the economic
value of the rights in question.
As long as exploitation is
ongoing, contractual
counterparts of authors and
performers should provide
information available to them
on all modes of exploitation and
on all relevant revenues with a
regularity which is appropriate
in the relevant sector, but at
least annually. The processing
of personal data, such as
12513/18
BM/np
111
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
contact details and information
on remuneration, that are
necessary to keep authors and
performers informed on the
exploitation of their works and
performances should be carried
out by those who need to
comply with the transparency
obligation on the basis of
Article 6(1)(c) of Regulation
(EU) 2016/679 on the protection
of natural persons with regard
to the processing of personal
data and the free movement of
such data (General Data
Protection Regulation).
93.
(40b) In order to ensure that
exploitation-related
information is duly provided to
authors and performers also in
cases where the rights have
been sublicensed by the first
contractor to other parties who
exploit the rights, this Directive
entitles authors and
performers, in cases where the
contractual partner has
provided the information
12513/18
BM/np
112
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
available to them, but the
received information is not
sufficient to assess the economic
value of their rights, to request
additional relevant information
on the exploitation of the rights.
This can be ensured either
directly or through the
contractual counterparts of
authors and performers.
Member States should have the
option, in compliance with
Union law, to provide for
further measures through
national provisions to ensure
transparency for authors and
performers.
94.
(41) When implementing
(41) When implementing
(41) When implementing
transparency obligations, the
transparency obligations, the
transparency obligations,
specificities of different content
specificities of different content
Member States should take into
sectors and of the rights of the
sectors and of the rights of the
account the specificities of
authors and performers in each
authors and performers in each
different content sectors and
,
sector should be considered.
sector should be considered.
such as those of the rights of the
Member States should consult all Member States should consult all authors and performers in
relevant stakeholders as that
relevant stakeholders as that
each
music sector should be
should help determine sector-
should help determine sector-
considered. Member States
specific requirements. Collective specific requirements. Collective should consult
, the audiovisual
bargaining should be considered
bargaining should be considered
sector and the publishing sector
12513/18
BM/np
113
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
as an option to reach an
as an option to reach an
and all relevant stakeholders as
agreement between the relevant
agreement between the relevant
that should help determine
be
stakeholders regarding
stakeholders regarding
involved when determining
transparency. To enable the
transparency. To enable the
such sector-specific
adaptation of current reporting
adaptation of current reporting
requirements.
Where relevant,
practices to the transparency
practices to the transparency
the significance of the
obligations, a transitional period
obligations, a transitional period
contribution of authors and
should be provided for. The
should be provided for. The
performers to the overall work
transparency obligations do not
transparency obligations do not
or performance should also be
need to apply to agreements
need to apply to agreements
considered. Collective
concluded with collective
concluded with collective
bargaining should be considered
management organisations as
management organisations as
as an option to reach an
those are already subject to
those are already subject to
agreement between the relevant
transparency obligations under
transparency obligations under
stakeholders regarding
Directive 2014/26/EU.
Directive 2014/26/EU.
transparency.
which should
ensure authors and performers
the same or higher level of
transparency as the minimum
requirements provided for in
this Directive. To enable the
adaptation of current reporting
practices to the transparency
obligations, a transitional period
should be provided for. The
transparency obligations do not
need to apply to agreements
concluded with collective
management organisations
and
independent management
12513/18
BM/np
114
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
entities or by other entities
subject to the national rules
implementing Directive
2014/26/EU as those are already
subject to transparency
obligations under Directive
2014/26/EU.
95.
(42) Certain contracts for the
(42) Certain contracts for the
(42) Certain contracts for the
exploitation of rights harmonised exploitation of rights harmonised exploitation of rights harmonised
at Union level are of long
at Union level are of long
at Union level are of long
duration, offering few
duration, offering few
duration, offering few
possibilities for authors and
possibilities for authors and
possibilities for authors and
performers to renegotiate them
performers to renegotiate them
performers to renegotiate them
with their contractual counterparts with their contractual counterparts with their contractual
or their successors in title.
or their successors in title.
counterparts or their successors in
Therefore, without prejudice to
Therefore, without prejudice to
title.
when the economic value
the law applicable to contracts in the law applicable to contracts in
of the rights turns out to be
Member States, there should be a Member States, there should be a
significantly higher than
remuneration adjustment
remuneration adjustment
initially estimated. Therefore,
mechanism for cases where the
mechanism for cases where the
without prejudice to the law
remuneration originally agreed
remuneration originally agreed
applicable to contracts in Member
under a licence or a transfer of
under a licence or a transfer of
States, there should be a
rights is disproportionately low
rights is disproportionately low
remuneration adjustment
compared to the relevant revenues compared to the relevant
direct
mechanism
should be provided
and the benefits derived from the
and indirect revenues and the
for cases where the remuneration
exploitation of the work or the
benefits derived from the
originally agreed under a licence
fixation of the performance,
exploitation of the work or the
or a transfer of rights is
clearly
including in light of the
fixation of the performance,
becomes disproportionately low
12513/18
BM/np
115
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
transparency ensured by this
including in light of the
compared to the relevant
Directive. The assessment of the
transparency ensured by this
revenues and the benefits derived
situation should take account of
Directive. The assessment of the
from the
subsequent exploitation
the specific circumstances of each situation should take account of
of the work or the fixation of the
case as well as of the specificities the specific circumstances of each performance, including in light of
and practices of the different
case
, as well as of the specificities
by the transparency ensured by
content sectors. Where the parties and practices of the different
this Directive.
contractual
do not agree on the adjustment of content sectors
as well as of the
counterpart of the author or
the remuneration, the author or
nature and the contribution to
performer. The assessment of
performer should be entitled to
the work of the author or
the situation should take account
bring a claim before a court or
performer. Such a contract
of the specific circumstances of
other competent authority.
adjustment request could also be each case
, including the
made by the organisation
contribution of the author or
representing the author or
performer, as well as of the
performer on his or her behalf,
specificities and
remuneration
unless the request would be
practices of the different content
detrimental to the interests of the sectors
, and whether the
author or performer. Where the
contract is based on a collective
parties do not agree on the
bargaining agreement. Where
adjustment of the remuneration,
the parties do not agree on the
the author or performer
or a
adjustment of the remuneration,
representative organisation
the author or performer should be
appointed by them should
on
entitled to bring a claim before a
request by the author or
court or other competent
performer be entitled to bring a
authority.
This mechanism
claim before a court or other
should not apply to contracts
competent authority.
concluded by entities defined in
Article 3(a) and (b) of Directive
2014/26/EU or by other entities
12513/18
BM/np
116
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
subject to the national rules
implementing Directive
2014/26/UE.
96.
(43) Authors and performers are (43) Authors and performers are (43) Authors and performers are
often reluctant to enforce their
often reluctant to enforce their
often reluctant to enforce their
rights against their contractual
rights against their contractual
rights against their contractual
partners before a court or tribunal. partners before a court or tribunal. partners before a court or tribunal.
Member States should therefore
Member States should therefore
Member States should therefore
provide for an alternative dispute provide for an alternative dispute provide for an alternative dispute
resolution procedure that
resolution procedure that
resolution procedure that
addresses claims related to
addresses claims related to
addresses claims
by authors and
obligations of transparency and
obligations of transparency and
performers or their
the contract adjustment
the contract adjustment
representatives on their behalf
mechanism.
mechanism.
Representative
related to obligations of
organisations of authors and
transparency and the contract
performers, including collective adjustment mechanism.
For that
management organisations and
purpose, Member States may
trade unions, should be able to
either create a new body or
initiate such procedures at the
mechanism or rely on an
request of authors and
existing one that fulfils the
performers. Details about who
conditions established by this
initiated the procedure should
Directive irrespective of
remain undisclosed.
whether these are industry-led
or public, including when
incorporated in the national
judiciary system. Member
States should have flexibility in
deciding how the costs of the
12513/18
BM/np
117
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
dispute resolution procedure
should be allocated. This
alternative dispute resolution
procedure should be without
prejudice to the right of parties
to assert and defend their rights
by bringing an action before a
court.
97.
(43a) When authors and
performers license or transfer
their rights, they expect their
work or performance to be
exploited. However, it happens
that works or performances that
have been licensed or transferred
are not exploited at all. When
these rights have been
transferred on an exclusive
basis, authors and performers
cannot turn to another partner to
exploit their work. In such a
case, and after a reasonable
period of time has lapsed,
authors and performers should
have a right of revocation
allowing them to transfer or
license their right to another
person. Revocation should also
12513/18
BM/np
118
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
be possible when the transferee
or licensee has not complied with
his or her reporting/transparency
obligation provided for in Article
14 of this Directive. The
revocation should only be
considered after all the steps of
alternative dispute resolution
have been completed,
particularly with regard to
reporting. As exploitation of
works can vary depending on the
sectors, specific provisions could
be taken at national level in
order to take into account the
specificities of the sectors, such
as the audiovisual sector, or of
the works and the anticipated
exploitation periods, notably
providing for time limits for the
right of revocation. In order to
prevent abuses and take into
account that a certain amount of
time is needed before a work is
actually exploited, authors and
performers should be able to
exercise the right of revocation
only after a certain period of
time following the conclusion of
12513/18
BM/np
119
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
the license or of the transfer
agreement. National law should
regulate the exercise of the right
of revocation in the case of
works involving a plurality of
authors or performers, taking
into account the relative
importance of the individual
contributions.
98.
(43b) To support the effective
application across Member
States of the relevant provisions
of this Directive, the Commission
should, in cooperation with
Member States, encourage the
exchange of best practices and
promote dialogue at Union level.
99.
(43a) The obligations laid down
in Articles 14 and 15 of this
Directive should be of a
mandatory nature and parties
should not be able to derogate
from these contractual
provisions, whether included in
the contracts between authors,
performers and their
contractual counterparts or in
12513/18
BM/np
120
ANNEX
ECOMP.3.B
EN
link to page 121
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
agreements between those
counterparts and third parties
such as non-disclosure
agreements. As a consequence,
the rules set out in Article 3(4)
of the Regulation (EC) No
593/2008 of the European
Parliament and of the Council14
should apply to the effect that
where all other elements
relevant to the situation at the
time of the choice are located in
one or more Member States,
the parties’ choice of applicable
law other than that of a
Member State shall not
prejudice the application of
Articles 14 and 15, as
implemented in the Member
State of the forum.
100. (44) The objectives of this
(44) The objectives of this
(44) The objectives of this
Directive, namely the
Directive, namely the
Directive, namely the
modernisation of certain aspects
modernisation of certain aspects
modernisation of certain aspects
of the Union copyright
of the Union copyright
of the Union copyright
14
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome
I) (OJ L 177, 4.7.2008, p. 6–16).
12513/18
BM/np
121
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
framework to take account of
framework to take account of
framework to take account of
technological developments and
technological developments and
technological developments and
new channels of distribution of
new channels of distribution of
new channels of distribution of
protected content in the internal
protected content in the internal
protected content in the internal
market, cannot be sufficiently
market, cannot be sufficiently
market, cannot be sufficiently
achieved by Member States but
achieved by Member States but
achieved by Member States but
can rather, by reason of their
can rather, by reason of their
can rather, by reason of their
scale, effects and cross-border
scale, effects and cross-border
scale, effects and cross-border
dimension, be better achieved at
dimension, be better achieved at
dimension, be better achieved at
Union level. Therefore, the Union Union level. Therefore, the Union Union level. Therefore, the Union
may adopt measures in
may adopt measures in
may adopt measures in
accordance with the principle of
accordance with the principle of
accordance with the principle of
subsidiarity as set out in Article 5 subsidiarity as set out in Article 5 subsidiarity as set out in Article 5
of the Treaty on European Union. of the Treaty on European Union. of the Treaty on European Union.
In accordance with the principle
In accordance with the principle
In accordance with the principle
of proportionality, as set out in
of proportionality, as set out in
of proportionality, as set out in
that Article, this Directive does
that Article, this Directive does
that Article, this Directive does
not go beyond what is necessary
not go beyond what is necessary
not go beyond what is necessary
in order to achieve those
in order to achieve those
in order to achieve those
objectives.
objectives.
objectives.
101. (45) This Directive respects the
(45) This Directive respects the
(45) This Directive respects the
fundamental rights and observes
fundamental rights and observes
fundamental rights and observes
the principles recognised in
the principles recognised in
the principles recognised in
particular by the Charter of
particular by the Charter of
particular by the Charter of
Fundamental Rights of the
Fundamental Rights of the
Fundamental Rights of the
European Union. Accordingly,
European Union. Accordingly,
European Union. Accordingly,
this Directive should be
this Directive should be
this Directive should be
interpreted and applied in
interpreted and applied in
interpreted and applied in
12513/18
BM/np
122
ANNEX
ECOMP.3.B
EN
link to page 123 link to page 123
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
accordance with those rights and accordance with those rights and
accordance with those rights and
principles.
principles.
principles.
102. (46) Any processing of personal (46) Any processing of personal (46) Any processing of personal
data under this Directive should
data under this Directive should
data under this Directive should
respect fundamental rights,
respect fundamental rights,
respect fundamental rights,
including the right to respect for
including the right to respect for
including the right to respect for
private and family life and the
private and family life and the
private and family life and the
right to protection of personal
right to protection of personal
right to protection of personal
data under Articles 7 and 8 of the data under Articles 7 and 8 of the data under Articles 7 and 8 of the
Charter of Fundamental Rights of Charter of Fundamental Rights of Charter of Fundamental Rights of
the European Union and must be the European Union and must be
the European Union and must be
in compliance with
in compliance with Directive
in compliance with Directive
95/46/EC of the European
95/46/EC of the European
Directive 95/46/EC of the
Parliament and of the Council15
Parliament and of the Council
15
European Parliament and of the
Regulation (EU) 2016/679 and
and Directive 2002/58/EC of the
Council15
and Directive
Directive 2002/58/EC of the
European Parliament and of the
2002/58/EC of the European
European Parliament and of the
Council
16.
Parliament and of the Council16.
Council16
The provisions of the
15
Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the
processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31–50). This Directive is repealed with effect from
25 May 2018 and shall be replaced by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive
95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1–88).
16
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the
protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37–
47), called, as amended by Directives 2006/24/EC and 2009/136/EC, the “e-Privacy Directive”.
12513/18
BM/np
123
ANNEX
ECOMP.3.B
EN
link to page 124
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
General Data Protection
Regulation, including the "right
to be forgotten" should be
respected.
103.
(46 a) It is important to stress
the importance of anonymity,
when handling personal data for
commercial purposes.
Additionally, the "by default"
not sharing option with regards
to personal data while using
online platform interfaces should
be promoted.
104. (47) In accordance with the Joint (47) In accordance with the Joint (47) In accordance with the Joint
Political Declaration of 28
Political Declaration of 28
Political Declaration of 28
September 2011 of Member
September 2011 of Member
September 2011 of Member
States and the Commission on
States and the Commission on
States and the Commission on
explanatory documents17,
explanatory documents17,
explanatory documents
17,
Member States have undertaken
Member States have undertaken
Member States have undertaken
to accompany, in justified cases,
to accompany, in justified cases,
to accompany, in justified cases,
the notification of their
the notification of their
the notification of their
transposition measures with one
transposition measures with one
transposition measures with one
or more documents explaining the or more documents explaining the or more documents explaining the
relationship between the
relationship between the
relationship between the
17
OJ C 369, 17.12.2011, p. 14.
12513/18
BM/np
124
ANNEX
ECOMP.3.B
EN
EP TEXT
Row
COMMISSION PROPOSAL
COUNCIL TEXT
POSSIBLE COMPROMISE
COM(2016)593
P8_TA-PROV(2018)0337
A8-0245/2018
9134/18
SOLUTION
components of a directive and the components of a directive and the components of a directive and the
corresponding parts of national
corresponding parts of national
corresponding parts of national
transposition instruments. With
transposition instruments. With
transposition instruments. With
regard to this Directive, the
regard to this Directive, the
regard to this Directive, the
legislator considers the
legislator considers the
legislator considers the
transmission of such documents
transmission of such documents
transmission of such documents
to be justified,
to be justified,
to be justified,
12513/18
BM/np
125
ANNEX
ECOMP.3.B
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)
PART 2: ARTICLES
Note:
Differences between the EP's position and the Commission's proposal are highlighted in bold /italic. Deletions are marked with strikethrough.
Differences between the Council's position and the Commission's proposal are highlighted in bold/underlined.
Deletions are marked with strikethrough.
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
105.
TITLE I
TITLE I
TITLE I
GENERAL PROVISIONS
GENERAL PROVISIONS
GENERAL PROVISIONS
106. Art.1,
Article 1
Article 1
Article 1
Subject matter and scope
Subject matter and scope
Subject matter and scope
title
107. Art. 1, para 1 1.
This Directive lays
1. This Directive lays down
1.
This Directive lays
down rules which aim at
rules which aim at further
down rules which aim at
further harmonising the
harmonising the Union law
further harmonising the
Union law applicable to
applicable to copyright and
Union law applicable to
12513/18
BM/np
126
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
copyright and related rights in related rights in the
copyright and related rights in
the framework of the internal framework of the internal
the framework of the internal
market, taking into account in market, taking into account in market, taking into account in
particular digital and cross-
particular digital and cross-
particular digital and cross-
border uses of protected
border uses of protected
border uses of protected
content. It also lays down
content. It also lays down
content. It also lays down
rules on exceptions and
rules on exceptions and
rules on exceptions and
limitations, on the facilitation limitations, on the facilitation limitations, on the facilitation
of licences as well as rules
of licences as well as rules
of licences as well as rules
aiming at ensuring a well-
aiming at ensuring a well-
aiming at ensuring a well-
functioning marketplace for
functioning marketplace for
functioning marketplace for
the exploitation of works and the exploitation of works and the exploitation of works and
other subject-matter.
other subject-matter.
other subject-matter.
108. Art. 1, para 2 2.
Except in the cases
2. Except in the cases
2.
Except in the cases
referred to in Article 6, this
referred to in Article 6, this
referred to in Article 6
17, this
Directive shall leave intact
Directive shall leave intact
Directive shall leave intact
and shall in no way affect
and shall in no way affect
and shall in no way affect
existing rules laid down in
existing rules laid down in
existing rules laid down in
the Directives currently in
the Directives currently in
the Directives currently in
force in this area, in particular force in this area, in particular force in this area, in particular
Directives 96/9/EC,
Directives 96/9/EC
,
Directives 96/9/EC,
2001/29/EC, 2006/115/EC,
2000/31/EC, 2001/29/EC,
2000/31/EC, 2001/29/EC,
2009/24/EC, 2012/28/EU and 2006/115/EC, 2009/24/EC,
2006/115/EC, 2009/24/EC,
2014/26/EU.
2012/28/EU and 2014/26/EU. 2012/28/EU and 2014/26/EU.
109. Art. 2, title
Article 2
Article 2
Article 2
Definitions
Definitions
Definitions
12513/18
BM/np
127
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
110. Art. 2,
For the purposes of this
For the purposes of this
For the purposes of this
introductory
Directive, the following
Directive, the following
Directive, the following
part
definitions shall apply:
definitions shall apply:
definitions shall apply:
111. Art. 2, para 1, (1) ‘research organisation’ (1) ‘research organisation’
(1) ‘research organisation’
introductory
means a university, a research means a university
, including means a university, a
part
institute or any other
its libraries, a research
research institute or any other
organisation the primary goal institute or any other
organisation
an entity, the
of which is to conduct
organisation the primary goal primary goal of which is to
scientific research or to
of which is to conduct
conduct scientific research or
conduct scientific research
scientific research or to
to conduct scientific research
and provide educational
conduct scientific research
and provide educational
services:
and provide educational
services:
involving also the
services:
conduct of scientific
research:
112. Art. 2, para 1, (a) on a non-for-profit
(a) on a non-for-profit
(a) on a non-for-profit
point (a)
basis or by reinvesting all the basis or by reinvesting all the basis or by reinvesting all the
profits in its scientific
profits in its scientific
profits in its scientific
research; or
research; or
research; or
113. Art. 2, para 1, (b) pursuant to a public
(b) pursuant to a public
(b) pursuant to a public
point (b)
interest mission recognised
interest mission recognised
interest mission recognised
by a Member State;
by a Member State;
by a Member State;
114. Art. 2, para 1, in such a way that the access in such a way that the access in such a way that the access
closing phrase to the results generated by the to the results generated by the to the results generated by the
scientific research cannot be
scientific research cannot be
scientific research cannot be
12513/18
BM/np
128
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
enjoyed on a preferential
enjoyed on a preferential
enjoyed on a preferential
basis by an undertaking
basis by an undertaking
basis by an undertaking
exercising a decisive
exercising a
significant
exercising a decisive
influence upon such
influence upon such
influence upon such
organisation;
organisation;
organisation;
115. Art. 2, para 2 (2) ‘text and data mining’
(2) 'text and data mining'
(2) ‘text and data mining’
means any automated
means any automated
means any automated
analytical technique aiming
analytical technique
which
analytical technique aiming
to analyse text and data in
analyses works and other
to analyse text and data in
digital form in order to
subject matter in digital form digital form in order to
generate information such as in order to generate
generate information such as
patterns, trends and
information
, including, but
patterns, trends and
correlations;
not limited to, patterns, trends correlations;
and correlations
.
116. Art. 2, para 3 (3) ‘cultural heritage
(3) ‘cultural heritage
(3) ‘cultural heritage
institution’ means a publicly institution’ means a publicly institution’ means a publicly
accessible library or museum, accessible library or museum, accessible library or museum,
an archive or a film or audio
an archive or a film or audio
an archive or a film or audio
heritage institution;
heritage institution;
heritage institution;
117. Art. 2, para 4 (4) ‘press publication’
(4) ‘press publication’ means (4) ‘press publication’
means a fixation of a
a fixation
by publishers or
means a fixation of a
collection of literary works of
news agencies of a collection collection
composed mainly
a journalistic nature, which
of literary works of a
of literary works of a
may also comprise other
journalistic nature, which
journalistic nature, which
:
works or subject-matter and
may also comprise other
constitutes an individual item works or subject-matter and
[remaining part of this
12513/18
BM/np
129
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
within a periodical or
constitutes an individual item
pargraph was split up in
regularly-updated publication within a periodical or
points (a) to (d) - see
under a single title, such as a regularly-updated publication
following rows 118-121]
newspaper or a general or
under a single title, such as a
special interest
newspaper or a general or
magazine, having the purpose special interest magazine,
of providing information
having the purpose of
related to news or other
providing information related
topics and published in any
to news or other topics and
media under the initiative,
published in any media under
editorial responsibility and
the initiative, editorial
control of a service provider. responsibility and control of a
service provider.
Periodicals
which are published for
scientific or academic
purposes, such as scientific
journals, shall not be
covered by this definition;
118. Art. 2, para 4,
(a) may also
point (a)
comprise
include other works
or subject-matter and
;
[See Article 2(4) of COM
proposal and of EP text (row
117)]
119. Art. 2, para 4,
(b) constitutes an
individual item within a
12513/18
BM/np
130
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
point (b)
periodical or regularly-
updated publication under a
single title, such as a
newspaper or a general or
special interest magazine,
;
[See Article 2(4) of COM
proposal and of EP text (row
117)]
120. Art. 2, para 4,
(c) has having
the purpose
point (c)
of providing
the general
public with information
related to news or other
topics
; and
[See Article 2(4) of COM
proposal and of EP text (row
117)]
121. Art. 2, para 4,
(d) is published in any
point (d)
media under the initiative,
editorial responsibility and
control of a service provider.
;
[See Article 2(4) of COM
proposal and of EP text (row
117)]
12513/18
BM/np
131
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
122. Art. 2, para
(4a) ‘out of commerce work’
4a,
means:
introductory
part
123. Art. 2, para
(a) an entire work or other
4a, point (a)
subject matter in any version
or manifestation that is no
longer available to the public
in a Member State through
customary channels of
commerce;
124. Art. 2, para
(b) a work or other subject
4a, point (b)
matter that has never been in
commerce in a Member
State, unless, from the
circumstances of that case, it
is apparent that its author
objected to making it
available to the public;
125. Art. 2, para 4b
(4b) ‘online content
(5) ‘online content
(EP)/para 5
sharing service provider’
sharing service provider’
(Council)
means a provider of an
means a provider of an
information society service
information society service
one of the main purposes of whose main or one of the
which is to store and give
main purposes is to store
12513/18
BM/np
132
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
access to the public to
and give the public access to
a significant amount of
a large amount of works or
copyright protected works or other subject-matter
other protected subject-
uploaded by its users which
matter uploaded by its users, it organises and promotes
which the service optimises
for profit-making purposes.
and promotes for profit
making purposes.
Providers of services such
Microenterprises and small-
as non-for-profit online
sized enterprises within the
encyclopaedias, non-for-
meaning of Title I of the
profit educational and
Annex to Commission
scientific repositories, non-
Recommendation
for-profit open source
2003/361/EC and services
software developing
acting in a non-commercial platforms, as well as
purpose capacity such as
internet access service
online encyclopaedia, and
providers, online
providers of online services
marketplaces and providers
where the content is
of cloud services which
uploaded with the
allow users, including
authorisation of all right
businesses for their internal
holders concerned, such as
purposes, to upload content
educational or scientific
for their own use shall not
repositories, shall not be
be considered online
considered online content
content sharing service
sharing service providers
providers within the
within the meaning of this
meaning of this Directive;
Directive. Providers of cloud
12513/18
BM/np
133
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
services for individual use
which do not provide direct
access to the public, open
source software developing
platforms, and online market
places whose main activity is
online retail of physical
goods, should not be
considered online content
sharing service providers
within the meaning of this
Directive;
126. Art. 2, para 4c
(4c) ‘information society
(6) ‘information society
(EP)/para 6
service’ means a service
service’ means a service
(Council)
within the meaning of point within the meaning of
(b) of Article 1(1) of
Article 1(1)(b) of Directive
Directive (EU) 2015/1535 of (EU) 2015/1535.
the European Parliament
and of the Council1a;
___________
1a Directive (EU) 2015/1535
of the European Parliament
and of the Council of 9
September 2015 laying down
a procedure for the provision
of information in the field of
12513/18
BM/np
134
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
technical regulations and of
rules on Information Society
services (OJ L 241,
17.9.2015, p. 1).
127. Art. 2, para 4d
(4d) ‘automated image
referencing service’ means
any online service which
reproduces or makes
available to the public for
indexing and referencing
purposes graphic or art
works or photographic works
collected by automated
means via a third-party
online service.
128.
TITLE II
TITLE II
TITLE II
MEASURES TO ADAPT
MEASURES TO ADAPT
MEASURES TO ADAPT
EXCEPTIONS AND
EXCEPTIONS AND
EXCEPTIONS AND
LIMITATIONS TO THE
LIMITATIONS TO THE
LIMITATIONS TO THE
DIGITAL AND CROSS-
DIGITAL AND CROSS-
DIGITAL AND CROSS-
BORDER ENVIRONMENT BORDER ENVIRONMENT BORDER ENVIRONMENT
129. Art. 3,
Article 3
Article 3
Article 3
Text and data mining
Text and data mining
Text and data mining for the
title
purposes of scientific
research
12513/18
BM/np
135
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
130. Art. 3, para 1 1.
Member States shall
1. Member States shall
1.
.Member States shall
provide for an exception to
provide for an exception to
provide for an exception to
the rights provided for in
the rights provided for in
the rights provided for in
Article 2 of Directive
Article 2 of Directive
Article 2 of Directive
2001/29/EC, Articles 5(a) and 2001/29/EC, Articles 5(a) and 2001/29/EC, Articles 5(a) and
7(1) of Directive 96/9/EC and 7(1) of Directive 96/9/EC and 7(1) of Directive 96/9/EC and
Article 11(1) of this Directive Article 11(1) of this Directive Article 11(1) of this Directive
for reproductions and
for reproductions and
for reproductions and
extractions made by research extractions made by research extractions made by research
organisations in order to carry organisations in order to carry organisations
and cultural
out text and data mining of
out text and data mining of
heritage institutions in order
works or other subject-matter works or other subject-matter to carry out text and data
to which they have lawful
to which
they have lawful
mining of works or other
access for the purposes of
access
research
subject-matter to which they
scientific research.
organisations have lawful
have lawful access
, for the
access and made in order to purposes of scientific
carry out text and data
research.
mining for the purposes of
scientific research
by such
organisations.
Member States shall provide
for educational
establishments and cultural
heritage institutions
conducting scientific
research within the meaning
of point (1)(a) or (1)(b) of
12513/18
BM/np
136
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
Article 2, in such a way that
the access to the results
generated by the scientific
research cannot be enjoyed
on a preferential basis by an
undertaking exercising a
decisive influence upon such
organisations, to also be able
to benefit from the exception
provided for in this Article.
131. Art. 3, para 1a
1a. Reproductions and
1a. Copies of works or other
extractions made for text and
subject-matter made in
data mining purposes shall
compliance with
be stored in a secure
paragraph 1 shall be
manner, for example by
stored with an
trusted bodies appointed for
appropriate level of
this purpose.
security and not be
retained for longer than
necessary for achieving
the purposes of scientific
research.
132. Art. 3, para 2 2.
Any contractual
2.
Any contractual
2.
[Moved to Article 6(1)]
provision contrary to the
provision contrary to the
exception provided for in
exception provided for in
paragraph 1 shall be
paragraph 1 shall be
unenforceable.
unenforceable.
12513/18
BM/np
137
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
[See Council’s Article 6(1)
(row 155)]
133. Art. 3, para 3 3.
Rightholders shall be
3.
Rightholders shall be
3.
Rightholders shall be
allowed to apply measures to allowed to apply measures to allowed to apply measures to
ensure the security and
ensure the security and
ensure the security and
integrity of the networks and integrity of the networks and integrity of the networks and
databases where the works or databases where the works or databases where the works or
other subject-matter are
other subject-matter are
other subject-matter are
hosted. Such measures shall
hosted. Such measures shall
hosted. Such measures shall
not go beyond what is
not go beyond what is
not go beyond what is
necessary to achieve that
necessary to achieve that
necessary to achieve that
objective.
objective.
objective.
134. Art. 3, para 4 4.
Member States shall
4.
Member States shall
4.
Member States shall
encourage rightholders and
encourage rightholders and
encourage rightholders and
,
research organisations to
research organisations to
research organisations
and
define commonly-agreed best define commonly-agreed best
cultural heritage
practices concerning the
practices concerning the
institutions to define
application of the measures
application of the measures
commonly-agreed best
referred to in paragraph 3.
referred to in paragraph
practices concerning the
3.
may continue to provide
application of the
obligation
text and data mining
and measures referred to
exceptions in accordance
respectively in paragraph
s 1a
with point (a) of Article 5(3) and 3.
of Directive 2001/29/EC.
135. Art. 3a, title
Article 3a
Article 3a
12513/18
BM/np
138
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
Optional exception or
Optional exception or
limitation for text and data
limitation for text and data
mining
mining
136. Art. 3a, para 1
1.
Without prejudice to
1.
Without prejudice to
Article 3 of this Directive,
Article 3 of this Directive
Member States may provide
Member States may
for an exception or a
provide for an exception or
limitation to the rights
a limitation to the rights
provided for in Article 2 of
provided for in Article 2 of
Directive 2001/29/EC,
Directive 2001/29/EC,
Articles 5(a) and 7(1) of
Articles 5(a) and 7(1) of
Directive 96/9/EC and
Directive 96/9/EC and
Article 11(1) of this Directive Article 11(1) of this
for reproductions and
Directive for temporary
extractions of lawfully
reproductions and
accessible works and other
extractions of lawfully
subject-matter that form a
accessible works and other
part of the process of text
subject-matter that form a
and data mining, provided
part of the process of text
that the use of works and
and data mining.
other subject matter referred
to therein has not been
expressly reserved by their
rightholders, including by
machine readable means.
137. Art. 3a, para 2
2.
Reproductions and
12513/18
BM/np
139
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
(EP)
extractions made pursuant to
paragraph 1 shall not be
used for purposes other than
text and data mining.
138. Art. 3a, para 2
2.
The exception or
(Council)
limitation provided for in
paragraph 1 shall apply
provided that the use of
works and other subject
matter referred to therein
has not been expressly
reserved by their
rightholders including by
technical means.
[See para.1 of EP text (row
136)]
139. Art. 3a, para 3
3.
Member States may
continue to provide text and
data mining exceptions in
accordance with point (a) of
Article 5 (3) of Directive
2001/29/EC.
140. Art. 4,
Article 4
Article 4
Article 4
Use of works and other
Use of works and other
Use of works and other
title
subject-matter in digital and subject-matter in digital and subject-matter in digital and
12513/18
BM/np
140
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
cross-border teaching
cross-border teaching
cross-border teaching
activities
activities
activities
141. Art. 4, para 1 1.
Member States shall
1.
Member States shall
1.
Member States shall
provide for an exception or
provide for an exception or
provide for an exception or
limitation to the rights
limitation to the rights
limitation to the rights
provided for in Articles 2 and provided for in Articles 2 and provided for in Articles 2 and
3 of Directive 2001/29/EC,
3 of Directive 2001/29/EC,
3 of Directive 2001/29/EC,
Articles 5(a) and 7(1) of
Articles 5(a) and 7(1) of
Articles 5(a
), (b), (d) and
(e)
Directive 96/9/EC, Article
Directive 96/9/EC, Article
and Article 7(1) of Directive
4(1) of Directive 2009/24/EC 4(1) of Directive 2009/24/EC 96/9/EC, Article 4(1
)(a) and
and Article 11(1) of this
and Article 11(1) of this
(b) of Directive 2009/24/EC
Directive in order to allow for Directive in order to allow for and Article 11(1) of this
the digital use of works and
the digital use of works and
Directive in order to allow for
other subject-matter for the
other subject-matter for the
the digital use of works and
sole purpose of illustration
sole purpose of illustration
other subject-matter for the
for teaching, to the extent
for teaching, to the extent
sole purpose of illustration
justified by the non-
justified by the non-
for teaching, to the extent
commercial purpose to be
commercial purpose to be
justified by the non-
achieved, provided that the
achieved, provided that the
commercial purpose to be
use:
use:
achieved, provided that
the
such use:
142. Art. 4, para 1, (a) takes place on the
(a) takes place on the
(a) takes place on
under the
point (a)
premises of an educational
premises of an educational
premises
responsibility of an
establishment or through a
establishment
, or in any
educational establishment
, on
secure electronic network
other venue in which the
its premises or other
accessible only by the
teaching activity takes place venues, or through a secure
educational establishment's
under the responsibility of
electronic network accessible
12513/18
BM/np
141
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
pupils or students and
the educational
only by the educational
teaching staff;
establishment, or through a
establishment's pupils or
secure electronic network
students and teaching staff;
environment accessible only
and
by the educational
establishment's pupils or
students and teaching staff;
143. Art. 4, para 1, (b) is accompanied by the
(b) is accompanied by the (b) is accompanied by the
point (b)
indication of the source,
indication of the source,
indication of the source,
including the author's name,
including the author's name,
including the author's name,
unless this turns out to be
unless this turns out to be
unless this turns out to be
impossible.
impossible
for reasons of
impossible.
practicability.
144. Art. 4, para 2, 2.
Member States may
2.
Member States may
2.
Notwithstanding
sub-para 1
provide that the exception
provide that the exception
Article 6(1), Member States
adopted pursuant to
adopted pursuant to
may provide that the
paragraph 1 does not apply
paragraph 1 does not apply
exception adopted pursuant to
generally or as regards
generally or as regards
paragraph 1 does not apply
specific types of works or
specific types of works or
generally or as regards
other subject-matter, to the
other subject-matter,
such as specific
uses or types of
extent that adequate licences
material which is primarily
works or other subject-matter,
authorising the acts described
intended for the educational to the extent that adequate
in paragraph 1 are easily
market or sheet music, to the licences
covering the needs
available in the market.
extent that adequate licences
of educational
licencing agreements
establishments and
authorising the acts described authorising the acts described
in paragraph 1
and tailored to in paragraph 1 are easily
12513/18
BM/np
142
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
the needs and specificities of available in the market.
educational establishments
are easily available in the
market.
145. Art. 4, para 2, Member States availing
Member States availing
Member States availing
sub-para 2
themselves of the provision
themselves of the provision
themselves of the provision
of the first subparagraph shall of the first subparagraph shall of the first subparagraph shall
take the necessary measures
take the necessary measures
take the necessary measures
to ensure appropriate
to ensure appropriate
to ensure appropriate
availability and visibility of
availability and visibility of
availability and visibility
the licences authorising the
the licences authorising the
of
that rightholders make
acts described in paragraph 1 acts described in paragraph 1 the licences authorising the
for educational
for educational
acts described in paragraph 1
establishments.
establishments.
available and visible for
educational establishments.
146. Art. 4, para 3 3.
The use of works and
3.
The use of works and
3.
The use of works and
other subject-matter for the
other subject-matter for the
other subject-matter for the
sole purpose of illustration
sole purpose of illustration
sole purpose of illustration
for teaching through secure
for teaching through secure
for teaching through secure
electronic networks
electronic networks
electronic networks
undertaken in compliance
environments undertaken in
undertaken in compliance
with the provisions of
compliance with the
with the provisions of
national law adopted pursuant provisions of national law
national law adopted
to this Article shall be
adopted pursuant to this
pursuant to this Article shall
deemed to occur solely in the Article shall be deemed to
be deemed to occur solely in
Member State where the
occur solely in the Member
the Member State where the
educational establishment is
State where the educational
educational establishment is
12513/18
BM/np
143
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
established.
establishment is established.
established.
147. Art. 4, para 4 4.
Member States may
4.
Member States may
4.
Member States may
provide for fair compensation provide for fair compensation provide for fair compensation
for the harm incurred by the
for the harm incurred by the
for the harm incurred by
rightholders due to the use of rightholders due to the use of the
to rightholders due to the
their works or other subject-
their works or other subject-
use of their works or other
matter pursuant to paragraph matter pursuant to paragraph subject-matter pursuant to
1.
1.
paragraph 1.
148. Art. 4, para 4a
4a. Without prejudice to
paragraph 2, any contractual
provision contrary to the
exception or limitation
adopted pursuant to
paragraph 1 shall be
unenforceable. Member
States shall ensure that
rightholders have the right to
grant royalty-free licences
authorising the acts
described in paragraph 1,
generally or as regards
specific types of works or
other subject-matter that
they may choose.
[See Council’s Article 6(1)
12513/18
BM/np
144
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
(row 155)]
149. Art. 5, title
Article 5
Article 5
Article 5
Preservation of cultural
Preservation of cultural
Preservation of cultural
heritage
heritage
heritage
150. Art. 5, [para 1 Member States shall provide
1.
Member States shall
Member States shall provide
(EP)]
for an exception to the rights provide for an exception to
for an exception to the rights
provided for in Article 2 of
the rights provided for in
provided for in Article 2 of
Directive 2001/29/EC,
Article 2 of Directive
Directive 2001/29/EC,
Articles 5(a) and 7(1) of
2001/29/EC, Articles 5(a) and Articles 5(a) and 7(1) of
Directive 96/9/EC, Article
7(1) of Directive 96/9/EC,
Directive 96/9/EC, Article
4(1)(a) of Directive
Article 4(1)(a) of Directive
4(1)(a) of Directive
2009/24/EC and Article 11(1) 2009/24/EC and Article 11(1) 2009/24/EC and Article 11(1)
of this Directive, permitting
of this Directive, permitting
of this Directive, permitting
cultural heritage institutions, cultural heritage institutions
cultural heritage institutions,
to make copies of any works to make copies of any works
to make copies of any works
or other subject-matter that
or other subject-matter that
or other subject-matter that
are permanently in their
are permanently in their
are permanently in their
collections, in any format or
collections, in any format or
collections, in any format or
medium, for the sole purpose medium, for the sole purpose medium, for the sole purpose
of the preservation of such
purposes of preservation of
of the preservation of such
works or other subject-matter such works or other subject-
works or other subject-matter
and to the extent necessary
matter and to the extent
and to the extent necessary
for such preservation.
necessary for such
for such preservation.
preservation.
151. Art. 5, para 1a
1a. Member States shall
ensure that any material
12513/18
BM/np
145
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
resulting from an act of
reproduction of material in
the public domain shall not
be subject to copyright or
related rights, provided that
such reproduction is a
faithful reproduction for
purposes of preservation of
the original material.
152. Art. 5, para 1b
1b.
Any contractual
provision contrary to the
exception provided for in
paragraph 1 shall be
unenforceable.
[See Council’s Article 6(1)
(row 155)]
153. Art. 6,
Article 6
Article 6
Article 6
Common provisions
Common provisions
Common provisions
title
154. Art. 6, para 1
1.
Accessing content
(EP)
covered by an exception
provided for in this Directive
shall not confer on users any
entitlement to use it pursuant
to another exception.
12513/18
BM/np
146
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
155. Art. 6, para 1
1.
Any contractual
(Council)
provision contrary to the
exceptions provided for in
Articles 3, 4(1) and 5 shall
be unenforceable.
[See Article 3(2) of the COM
proposal and Parliament’s
Articles 3(2) and 4(4a) and
5(1b)]
156. Art. 6, para 2 Article 5(5) and the first,
2.
Article 5(5) and the
2.
Article 5(5) and the
of
third and fifth subparagraphs first, third
, fourth and fifth
Directive 2001/29/EC shall
of Article 6(4) of Directive
subparagraphs of Article 6(4)
apply to the exceptions and
2001/29/EC shall apply to the of Directive 2001/29/EC shall
the limitation provided for
exceptions and the limitation apply to the exceptions and
under this Title. The first,
provided for under this Title. the limitation provided for
third and fifth subparagraphs
under this Title.
of Article 6(4) of Directive
2001/29/EC shall apply to the
exceptions
Articles 3, 4(1)
and the limitation provided
for under
5 of this
Title
Directive.
157.
TITLE III
TITLE III
TITLE III
MEASURES TO IMPROVE MEASURES TO IMPROVE MEASURES TO IMPROVE
LICENSING PRACTICES
LICENSING PRACTICES
LICENSING PRACTICES
AND ENSURE WIDER
AND ENSURE WIDER
AND ENSURE WIDER
12513/18
BM/np
147
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
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
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
institutions
institutions
institutions
160. Art. 7, para 1, 1.
Member States shall
1.
Member States shall
1.
Member States shall
introductory
provide that when a collective provide that when a collective provide that when a collective
part
management organisation, on management organisation, on management organisation, on
behalf of its members,
behalf of its members,
behalf of
in accordance with
concludes a non-exclusive
concludes a non-exclusive
its members,
licence for non-commercial
licence for non-commercial
concludes
mandates, may
purposes with a cultural
purposes with a cultural
conclude a non-exclusive
heritage institution for the
heritage institution for the
licence for non-commercial
digitisation, distribution,
digitisation, distribution,
purposes with a cultural
communication to the public communication to the public heritage institution for the
or making available of out-of- or making available of out-of- digitisation
reproduction,
commerce works or other
commerce works or other
distribution, communication
subject-matter permanently in subject-matter permanently in to the public or making
the collection of the
the collection of the
available
to the public of
institution, such a non-
institution, such a non-
out-of-commerce works or
exclusive licence may be
exclusive licence may be
other subject-matter
extended or presumed to
extended or presumed to
permanently in the collection
apply to rightholders of the
apply to rightholders of the
of the institution, such a non-
same category as those
same category as those
exclusive licence may be
12513/18
BM/np
148
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
covered by the licence who
covered by the licence who
extended or presumed to
are not represented by the
are not 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:
161. Art. 7, para 1, (a) the collective
(a) the collective
(a) the collective
point (a)
management organisation is, management organisation is,
management organisation is,
on the basis of mandates from on the basis of mandates from on the basis of mandates
rightholders, broadly
rightholders, broadly
from rightholders,
representative of rightholders representative of rightholders broadly
sufficiently
in the category of works or
in the category of works or
representative of rightholders
other subject-matter and of
other subject-matter and of
in the category
relevant type
the rights which are the
the rights which are the
of works or other subject-
subject of the licence;
subject of the licence;
matter and of the rights
which are the subject of the
licence;
162. Art. 7, para 1, (b) equal treatment is
(b) equal treatment is
(b) equal treatment is
point (b)
guaranteed to all rightholders guaranteed to all rightholders guaranteed to all rightholders
in relation to the terms of the in relation to the terms of the in relation to the terms of the
licence;
licence;
licence;
12513/18
BM/np
149
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
163. Art. 7, para 1, (c) all rightholders may at
(c) all rightholders may at
(c) all rightholders may at
point (c)
any time object to their works any time object to their works any time object to
exclude the
or other subject-matter being or other subject-matter being
possibility for collective
deemed to be out of
deemed to be out of
management organisations
commerce and exclude the
commerce and exclude the
to license their works or
application of the licence to
application of the licence to
other subject-matter being
their works or other subject-
their works or other subject-
deemed to be out of
matter.
matter.
commerce and
in
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
1a.
Member States shall
provide for an exception or
limitation to the rights
provided for in Articles 2
and 3 of Directive
2001/29/EC, Articles 5(a)
and 7(1) of Directive
96/9/EC, Article 4(1) of
Directive 2009/24/EC, and
Article 11(1) of this
Directive, permitting cultural
12513/18
BM/np
150
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
heritage institutions to make
copies available online of
out-of-commerce works that
are located permanently in
their collections for not-for-
profit purposes, provided
that:
165. Art. 7, para
(a)
the name of the author
1a, point (a)
or any other identifiable
rightholder is indicated,
unless this turns out to be
impossible;
166. Art. 7, para
(b)
all rightholders may at
1a, point (b)
any time object to their
works or other subject-
matter being deemed to be
out of commerce and
exclude the application of
the exception to their works
or other subject-matter.
167. Art. 7, para 1b
1b. Member States shall
provide that the exception
adopted pursuant to
paragraph 1a does not apply
in sectors or for types of
works where appropriate
12513/18
BM/np
151
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
licensing-based solutions,
including but not limited to
solutions provided for in
paragraph 1, are available.
Member States shall, in
consultation with authors,
other rightholders, collective
management organisations
and cultural heritage
institutions, determine the
availability of extended
collective licensing-based
solutions for specific sectors
or types of works.
168. Art. 7, para 2, 2.
A work or other
2.
A work or other
2.
A work or other
sub-para 1
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-
commerce when the whole
commerce when the whole
commerce when
it can be
work or other subject-matter, work or other subject-matter,
presumed in good faith that
in all its translations, versions in all its translations, versions the whole work or other
and manifestations, is not
and manifestations, is not
subject-matter, in all its
available to the public
available to the public
translations, versions and
through customary channels
through customary channels
manifestations, is not
of commerce and cannot be
of commerce and cannot be
available to the public
reasonably expected to
reasonably expected to
through customary channels
become so.
become so.
Member States
of commerce and cannot be
may provide a cut-off date in reasonably expected to
relation to determining
become so.
after a
12513/18
BM/np
152
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
whether a work previously
reasonable effort is made to
commercialised is deemed to determine such availability.
be out of commerce.
[See definition of out-of-
commerce work in
Parliament’s Article 2(4a)
(rows 122-126)]
169. Art. 7, para 2, Member States shall, in
Member States shall, in
Member States shall, in
sub-para 2
consultation with
consultation with
consultation with
rightholders, collective
rightholders, collective
rightholders, collective
management organisations
management organisations
management organisations
and cultural heritage
and cultural heritage
and cultural heritage
institutions, ensure that the
institutions, ensure that the
institutions, ensure that the
requirements used to
requirements used to
may provide for specific
determine whether works and determine whether works and requirements used to
other subject-matter can be
other subject-matter can be
determine whether works and
licensed in accordance with
licensed in accordance with
other subject-matter can be
paragraph 1 do not extend
paragraph 1
or used in
licensed in accordance with
beyond what is necessary and
accordance with paragraph
paragraph 1 do
. Such
reasonable and do not
1a do not extend beyond
requirements shall not
preclude the possibility to
what is necessary and
extend beyond what is
determine the out-of-
reasonable and do not
necessary and reasonable
,
commerce status of a
preclude the possibility to
and do
shall not preclude the
collection as a whole, when it determine the out-of-
possibility to determine the
is reasonable to presume that commerce status of a
out-of-commerce status of a
all works or other subject-
collection as a whole, when it collection as
set of works or
matter in the collection are
is reasonable to presume that
other subject-matter as a
12513/18
BM/np
153
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
out of commerce.
all works or other subject-
whole, when it is reasonable
matter in the collection are
to presume that all works or
out of commerce.
other subject-matter in the
collection are out
-of
-
commerce.
170. Art. 7, para 3, 3.
Member States shall
3. Member States shall
3.
[Moved to new Article
introductory
provide that appropriate
provide that appropriate
8a(2)]
part
publicity measures are taken
publicity measures are taken
regarding:
regarding:
171. Art. 7, para 3, (a) the deeming of works
(a) the deeming of works or
point (a)
or other subject-matter as out other subject-matter as out of
of commerce;
commerce;
172. Art. 7, para 3, (b) the licence, and in
(b) the
any licence, and in
point (b)
particular its application to
particular its application to
unrepresented rightholders;
unrepresented rightholders;
173. Art. 7, para 3, (c) the possibility of
(c) the possibility of
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 3, including during a reasonable including during a reasonable
closing phrase period of time before the
period of time
at least six
works or other subject-matter
months before the works or
are digitised, distributed,
other subject-matter are
12513/18
BM/np
154
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
communicated to the public
digitised, distributed,
or made available.
communicated to the public
or made available.
175. Art. 7, para 4, 4.
Member States shall
4.
Member States shall
4.
Member States shall
introductory
ensure that the licences
ensure that the licences
ensure that the licences
part / Art. 7,
referred to in paragraph 1 are referred to in paragraph 1 are referred to in paragraph 1 are
para 4
sought from a collective
sought from a collective
sought from a collective
(Council)
management organisation that management organisation that management organisation
is representative for the
is representative for the
that is representative for the
Member State where:
Member State where:
Member State where:
the
cultural heritage institution
is established.
176. Art. 7, para 5,
5.
This Article shall not
introductory
apply to sets of out-of-
part (Council)
commerce if, following the
reasonable effort to
determine commercial
availability, there is
evidence that such sets
predominantly consist of:
177. Art. 7, para 4, (a) the works or
(a) the works or
(a) the works or
other
point (a) (EP)/ phonograms were first
phonograms were first
subject-matter phonograms
Art. 7, para 5, published or, in the absence
published or, in the absence
were first published or, in the
point (a)
of publication, where they
of publication, where they
absence of publication, where
(Council)
were first broadcast, except
were first broadcast, except
they were first broadcast
in a
for cinematographic and
for cinematographic and
third country, except for
12513/18
BM/np
155
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
audiovisual works;
audiovisual works;
cinematographic and
or
audiovisual works;
178. Art. 7, para 4, (b) the producers of the
(b) the producers of the
(b)
cinematographic or
point (b) (EP)/ works have their headquarters works have their headquarters
audiovisual works, the
Art. 7, para 5, or habitual residence, for
or habitual residence, for
producers of the works
which
point (b)
cinematographic and
cinematographic and
have their headquarters or
(Council)
audiovisual works; or
audiovisual works; or
habitual residence, for
cinematographic and
audiovisual works
in a third
country; or
179. Art. 7, para 4, (c) the cultural heritage
(c) the cultural heritage
c)
the cultural heritage
point (c) (EP) institution is established,
institution is established,
institution is established,
/Art. 7, para 5, when a Member State or a
when a Member State or a
works or other subject-
point (c)
third country could not be
third country could not be
matter of third country
(Council)
determined, after reasonable
determined, after reasonable
nationals when a Member
efforts, according to points
efforts, according to points
State or a third country could
(a) and (b).
(a) and (b).
not be determined, after
a
reasonable efforts
effort,
according to points (a) and
(b).
);
180. Art. 7, para 5 5.
Paragraphs 1, 2 and 3
5.
Paragraphs 1, 2 and 3
5.
Paragraphs 1, 2 and 3
(EP)/ Art. 7,
shall not apply to the works
shall not apply to the works
shall not apply to
unless the
para 5, closing or other subject-matter of
or other subject-matter of
works or other subject-
phrase
third country nationals except third country nationals except matter
collective
(Council)
where points (a) and (b) of
where points (a) and (b) of
management organisation is
sufficiently representative
12513/18
BM/np
156
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
paragraph 4 apply.
paragraph 4 apply.
of
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
Cross-border uses
Cross-border uses
Cross-border uses
182. Art. 8, para 1 1.
Works or other subject- 1.
Works
Out-of-
1.
Works or other subject-
matter covered by a licence
commerce works or other
matter covered by a
A licence
granted in accordance with
subject-matter covered by a
granted in accordance with
Article 7 may be used by the licence granted in accordance Article 7 may be used
allow
cultural heritage institution in with Article 7
may be used by
the use of out-of-commerce
accordance with the terms of the cultural heritage
works or other subject-
the licence in all Member
institution in accordance with
matter by the cultural
States.
the terms of the licence
that
heritage institution in
Article in all Member States. accordance with the terms of
the licence in all
any Member
States
State.
183. Art. 8, para 2 2.
Member States shall
2.
Member States shall
2.
[Moved to new Article
ensure that information that
ensure that information that
8a(1)]
allows the identification of
allows the identification of
the works or other subject-
the works or other subject-
matter covered by a licence
matter 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
12513/18
BM/np
157
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
rightholders to object referred rightholders to object referred
to in Article 7(1)(c) are made to in
point (c) of Article 7(1)
publicly accessible in a single
and point (b) of Article 7(1a)
online portal for at least six
are made publicly
months before the works or
permanently, easily and
other subject-matter are
effectively accessible in a
digitised, distributed,
public single online portal for
communicated to the public
at least six months before the
or made available in Member works or other subject-matter
States other than the one
are digitised, distributed,
where the licence is granted, communicated to the public
and for the whole duration of or made available in Member
the licence.
States other than the one
where the licence is granted,
or in the cases covered by
Article 7(1a), where the
cultural heritage institution
is established and for the
whole duration of the licence.
184. Art. 8, para 3 3.
The portal referred to in 3.
The portal referred to in 3.
[Moved to new Article
paragraph 2 shall be
paragraph 2 shall be
8a(1) second subparagraph]
established and managed by
established and managed by
the European Union
the European Union
Intellectual Property Office in Intellectual Property Office in
accordance with Regulation
accordance with Regulation
(EU) No 386/2012.
(EU) No 386/2012.
12513/18
BM/np
158
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
185. Art. 8a, title
Article 8a
Publicity measures
186. Art. 8a, para
1.
Member States shall
1, sub-para 1
ensure that information that
allows
for the purposes of
the identification of the
out-
of-commerce works or other
subject-matter covered by a
licence granted in accordance
with Article 7 and
as well as
information about the
possibility
possibilities of
rightholders to object referred
to in Article 7(1)(c) are
),
and, as soon as it is
available, information on
the parties to the licence,
the covered territories and
the allowed uses is made
publicly accessible in a single
online portal for
from at least
six months before the works
or other subject-matter are
digitised, distributed,
12513/18
BM/np
159
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
communicated to the public
or made available in Member
States other than the one
where the licence is granted,
and for the whole duration
of
to the public in
accordance with the licence.
[Article 8(2) of the COM
proposal, amended]
187. Art. 8a, para
3.
The portal referred to in
1, sub-para 2
paragraph 2 shall be
established and managed by
the European Union
Intellectual Property Office
in accordance with
Regulation (EU) No
386/2012.
[Article 8(3) of the COM
proposal, amended]
188. Art. 8a, para 2
2.
Member States shall
provide that
, if necessary for
the general awareness of
rightholders, further
appropriate publicity
measures are taken regarding:
12513/18
BM/np
160
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
(a) the deeming of works or
other subject-matter as out of
commerce; (b) the licence,
and in particular its
application to unrepresented
rightholders;
the possibility
for collective management
organisations to license
works or other subject-
matter in accordance with
Article 7, the licences
granted and (c) the
possibilities to object of
rightholders referred to in
point (c) of paragraph 1
Article 7(1)(c) ;
.
Including during a reasonable
period of time before the
works or other subject-matter
are digitised, distributed,
communicated to the public
or made available.
The additional appropriate
publicity measures shall be
taken in the Member State
where the licence is sought.
If there is evidence, such as
12513/18
BM/np
161
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
the origin of the works or
other subject-matter, to
suggest that the awareness
of rightholders could be
more efficiently raised in
other Member States or
third countries, 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
Stakeholder dialogue
Stakeholder dialogue
Stakeholder dialogue
190. Art 9
Member States shall ensure a Member States shall ensure a Member States shall ensure
regular dialogue between
regular dialogue between
consult rightholders,
representative users' and
representative users' and
collective management
rightholders' organisations,
rightholders' organisations,
organisations and cultural
and any other relevant
and any other relevant
heritage institutions in each
stakeholder organisations, to, stakeholder organisations, to,
sector before establishing
on a sector-specific basis,
on a sector-specific basis,
specific requirements
foster the relevance and
foster the relevance and
pursuant to Article 7(2),
usability of the licensing
usability of the licensing
and encourage a regular
mechanisms referred to in
mechanisms referred to in
dialogue between
Article 7(1), ensure the
Article 7(1)
and the
representative users' and
effectiveness of the
exception referred to in
rightholders' organisations,
12513/18
BM/np
162
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
safeguards for rightholders
Article 7(1a), ensure the
including collective
referred to in this Chapter,
effectiveness of the
management organisations,
notably as regards publicity
safeguards for rightholders
and any other relevant
measures, and, where
referred to in this Chapter,
stakeholder organisations, to,
applicable, assist in the
notably as regards publicity
on a sector-specific basis,
to
establishment of the
measures, and, where
foster the relevance and
requirements referred to in
applicable, assist in the
usability of the licensing
the second subparagraph of
establishment of the
mechanisms referred to in
Article 7(2).
requirements referred to in
Article 7(1),
) and to ensure
the second subparagraph of
the effectiveness of the
Article 7(2).
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
Measures to facilitate
collective licensing
192. Art. 9a, title
Article 9a
Collective licensing with an
12513/18
BM/np
163
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
extended effect
193. Art. 9a, para 1
1. Member States may
provide, as far as the use
within their national
territory is concerned and
subject to safeguards
provided for in this Article,
that when a collective
management organisation,
in accordance with its
mandates from
rightholders, enters into a
licensing agreement for the
exploitation of works or
other subject-matter such
an agreement may be
extended to apply to the
rights of rightholders who
have not authorised the
organisation to represent
them by way of assignment,
licence or any other
contractual arrangement;
or, with respect to such an
agreement, the organisation
has a legal mandate or is
presumed to represent
rightholders who have not
12513/18
BM/np
164
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
authorised the organisation
accordingly.
194. Art. 9a, para 2
2. Member States shall
ensure that the licensing
mechanism referred to in
paragraph 1 is only applied
within well-defined areas of
use where obtaining
authorisations from
rightholders on an
individual basis is typically
onerous and impractical to
a degree that makes the
required licensing
transaction unlikely due to
the nature of the use or of
the types of works or other
subject-matter concerned
and that such mechanism
safeguards the legitimate
interests of rightholders.
195. Art. 9a, para 3
3. The safeguards
referred to in paragraph 1
must ensure that:
196. Art. 9a, para
(a) the organisation is, on
the basis of mandates from
12513/18
BM/np
165
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
3, point (a)
rightholders, sufficiently
representative of
rightholders in the relevant
type of works or other
subject-matter and of the
rights which are the subject
of the licence for the
relevant Member State;
197. Art. 9a, para
(b) equal treatment is
3, point (b)
guaranteed to all
rightholders in relation to
the terms of the licence;
198. Art. 9a, para
(c) rightholders who have
3, point (c)
not authorised the
organisation operating the
licence may at any time
easily and effectively
exclude their works or
other subject-matter from
the licensing mechanism
established in accordance
with this Article;
199. Art. 9a, para
(d) appropriate publicity
3, point (d)
measures are taken to raise
the awareness of
rightholders regarding the
12513/18
BM/np
166
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
possibility for organisations
to license works or other
subject-matter and the
licensing taking place in
accordance with this
Article, and the possibilities
of rightholders referred to
in point (c) starting from a
reasonable period before
the works or other subject-
matter are used under the
licence. Publicity measures
should be effective without
the need to inform each
rightholder individually.
200. Art. 9a, para 4
4. The rules provided for
in this Article are without
prejudice to the application
of collective licensing
mechanisms with an
extended effect in
conformity with other
provisions of Union law,
including those which allow
exceptions or limitations,
and shall not apply to
mandatory collective
12513/18
BM/np
167
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
management of rights.
201. Art. 9a, para 5
5. Where the law of a
Member State provides for
a licensing mechanism in
accordance with this
Article, the Member State
concerned shall inform the
Commission about the
scope of that law, purposes
and types of licences that
may be introduced under
that law as well as contact
details for organisations
issuing licences in
accordance with the
mechanism in paragraph 1.
The Commission shall
publish this information.
202. Art. 9a, para 6
6. Based on the
information received
pursuant to paragraph 5
and on the discussions in
the contact committee
referred to in Article 12(3)
of Directive 2001/29/EC, the
Commission shall, by 31
December 2020, submit to
12513/18
BM/np
168
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
the European Parliament
and to the Council a report
on the use of such
mechanisms referred to in
paragraph 1 in the EU and
their impact on licensing
and rightholders. The
Commission’s report shall
be accompanied, if
appropriate, by a legislative
proposal, including as
regards 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.
203.
CHAPTER 2
CHAPTER 2
CHAPTER 2
Access to and availability of
Access to and availability of
Access to and availability of
audiovisual works on video-
audiovisual works on video-
audiovisual works on video-
on-demand platforms
on-demand platforms
on-demand platforms
204. Art. 10, title
Article 10
Article 10
Article 10
Negotiation mechanism
Negotiation mechanism
Negotiation mechanism
12513/18
BM/np
169
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
205. Art. 10, sub-
Member States shall ensure
Member States shall ensure
Member States shall ensure
para 1
that where parties wishing to that where parties wishing to that where parties
conclude an agreement for
conclude an agreement for
wishing
facing difficulties
the purpose of making
the purpose of making
related to the licensing of
available audiovisual works
available audiovisual works
rights when seeking to
on video-on-demand
on video-on-demand
conclude an agreement for
platforms face difficulties
platforms face difficulties
the purpose of making
relating to the licensing of
relating to the licensing of
available audiovisual works
rights, they may rely on the
audiovisual rights, they may on video-on-demand
assistance of an impartial
rely on the assistance of an
platforms face difficulties
body with relevant
impartial body with relevant
relating to the licensing of
experience. That body shall
experience. That body
The
rights, they
services, may rely
provide assistance with
impartial body created or
on the assistance of an
negotiation and help reach
designated by the Member
impartial body with relevant
agreements.
State for the purpose of this experience. That
or of
Article shall provide
mediators. The body
or
assistance
to the parties with
mediators shall provide
negotiation and help
them to assistance
to the parties with
reach agreement.
negotiation
their negotiations
and help
them reach
agreements
, including,
where appropriate, by
submitting proposals to the
parties.
206. Art. 10, sub-
No later than [date mentioned No later than [date mentioned No later than [date mentioned
para 2
in Article 21(1)] Member
in Article 21(1)] Member
in Article 21(1)] Member
States shall notify to the
States shall
notify to
inform
States shall notify to the
12513/18
BM/np
170
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
Commission the body
the Commission
of the body
Commission the body
or
referred to in paragraph 1.
referred to in paragraph 1.
mediators referred to in
they create or designate
paragraph 1
no later than
pursuant to the first
[date mentioned in Article
paragraph.
21(1)]. In cases where
Member States have chosen
to rely on mediation, the
notification to the
Commission shall at least
include, when available, the
source where relevant
information on the
entrusted mediators can be
found.
207. Art. 10, sub-
To encourage the availability
para 3
of audiovisual works on
video-on-demand platforms,
Member States shall foster
dialogue between
representative organisations
of authors, producers, video-
on-demand platforms and
other relevant stakeholders.
208.
CHAPTER 2a
Access to Union publications
12513/18
BM/np
171
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
209. Art. 10a, title
Article 10 a
Union Legal Deposit
210. Art. 10a, para
1.
Any electronic
1
publication dealing with
Union-related matters such
as Union law, Union history
and integration, Union
policy and Union democracy,
institutional and
parliamentary affairs, and
politics, that is made
available to the public in the
Union shall be subject to a
Union Legal Deposit.
211. Art. 10a, para
2.
The European
2
Parliament Library shall be
entitled to delivery, free of
charge, of one copy of every
publication referred to in
paragraph 1.
212. Art. 10a, para
3.
The obligation set out
3
in paragraph 1 shall apply to
publishers, printers and
importers of publications for
the works they publish, print
12513/18
BM/np
172
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
or import in the Union.
213. Art. 10a, para
4.
From the day of the
4
delivery to the European
Parliament Library, the
publications referred to in
paragraph 1 shall become
part of the European
Parliament Library
permanent collection. They
shall be made available to
users at the European
Parliament Library’s
premises exclusively for the
purpose of research or study
by accredited researchers
and under the control of the
European Parliament
Library.
214. Art. 10a, para
5.
The Commission shall
5
adopt acts to specify the
modalities relating to the
delivery to the European
Parliament Library of
publications referred to in
paragraph 1.
12513/18
BM/np
173
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
215.
TITLE IV
TITLE IV
TITLE IV
MEASURES TO ACHIEVE MEASURES TO ACHIEVE MEASURES TO ACHIEVE
A WELL-FUNCTIONING
A WELL-FUNCTIONING
A WELL-FUNCTIONING
MARKETPLACE FOR
MARKETPLACE FOR
MARKETPLACE FOR
COPYRIGHT
COPYRIGHT
COPYRIGHT
216.
CHAPTER 1
CHAPTER 1
CHAPTER 1
Rights in publications
Rights in publications
Rights in publications
217. Art. 11, title
Article 11
Article 11
Article 11
Protection of press
Protection of press
Protection of press
publications concerning
publications concerning
publications concerning
digital uses
digital uses
digitalonline uses
218. Art. 11, para 1 1.
Member States shall
1.
Member States shall
1. Member States shall
provide publishers of press
provide publishers of press
provide publishers of press
publications with the rights
publications with the rights
publications
established in a
provided for in Article 2 and provided for in Article 2 and
Member State with the
Article 3(2) of Directive
Article 3(2) of Directive
rights provided for in Article
2001/29/EC for the digital
2001/29/EC
so that they may 2 and Article 3(2) of
use of their press
obtain fair and proportionate Directive 2001/29/EC for the
publications.
remuneration for the digital
digital
online use of their
use of their press publications press publications
by
by information society
information society service
service providers.
providers.
219. Art. 11, para
The rights referred to in the
1, sub-para 2
first subparagraph shall not
12513/18
BM/np
174
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
apply in respect of uses of
insubstantial parts of a
press publication. Member
States shall be free to
determine the insubstantial
nature of parts of press
publications taking into
account whether these parts
are the expression of the
intellectual creation of their
authors, or whether these
parts are individual words
or very short excerpts, or
both criteria.
220. Art. 11, para
1a. The rights referred to
1a
in paragraph 1 shall not
prevent legitimate private
and non-commercial use of
press publications by
individual users.
221. Art. 11, para 2 2.
The rights referred to in 2.
The rights referred to in 2.
The rights referred to in
paragraph 1 shall leave intact paragraph 1shall leave intact paragraph 1 shall leave intact
and shall in no way affect any and shall in no way affect any and shall in no way affect any
rights provided for in Union
rights provided for in Union
rights provided for in Union
law to authors and other
law to authors and other
law to authors and other
rightholders, in respect of the rightholders, in respect of the rightholders, in respect of the
works and other subject-
works and other subject-
works and other subject-
12513/18
BM/np
175
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
matter incorporated in a press matter incorporated in a press matter incorporated in a press
publication. Such rights may publication. Such rights may publication. Such
The rights
not be invoked against those
not be invoked against those
referred to in paragraph 1
authors and other rightholders authors and other rightholders may not be invoked against
and, in particular, may not
and, in particular, may not
those authors and other
deprive them of their right to deprive them of their right to rightholders and, in
exploit their works and other exploit their works and other particular, may not deprive
subject-matter independently subject-matter independently them of their right to exploit
from the press publication in from the press publication in their works and other subject-
which they are incorporated. which they are incorporated. matter independently from
the press publication in which
they are incorporated.
222. Art. 11, para
When a work or other
2, sub-para 2
subject-matter is
incorporated in a press
publication on the basis of a
non-exclusive licence, the
rights referred to in
paragraph 1 may not be
invoked to prohibit the use
by other authorised users.
The rights referred to in
paragraph 1 may not be
invoked to prohibit the use
of works or other subject-
matter whose protection
12513/18
BM/np
176
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
has expired.
223. Art. 11, para
2a. The rights referred to
2a
in paragraph 1 shall not
extend to mere hyperlinks
which are accompanied by
individual words.
224. Art. 11, para 3 3.
Articles 5 to 8 of
3.
Articles 5 to 8 of
3.
Articles 5 to 8 of
Directive 2001/29/EC and
Directive 2001/29/EC and
Directive 2001/29/EC and
Directive 2012/28/EU shall
Directive 2012/28/EU shall
Directive 2012/28/EU shall
apply
mutatis mutandis in
apply mutatis mutandis in
apply
mutatis mutandis in
respect of the rights referred
respect of the rights referred
respect of the rights referred
to in paragraph 1.
to in paragraph 1.
to in paragraph 1.
225. Art. 11, para 4 4.
The rights referred to in 4.
The rights referred to in 4.
The rights referred to in
paragraph 1 shall expire 20
paragraph 1 shall expire 20
5 paragraph 1 shall expire 20
years after the publication of years after the publication of years
1 year after the
the press publication. This
the press publication. This
publication of the press
term shall be calculated from term shall be calculated from publication. This term shall
the first day of January of the the first day of January of the be calculated from the first
year following the date of
year following the date of
day of January of the year
publication.
publication.
The right
following the date o
referred to in paragraph 1
publication.
shall not apply with
retroactive effect.
226. Art. 11, para
4a.
Member States shall
ensure that authors receive
12513/18
BM/np
177
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
4a
an appropriate share of the
additional revenues press
publishers receive for the use
of a press publication by
information society service
providers
227. Art. 11, para 5
5. Paragraph 1 shall not
apply to press publications
first published before [entry
into force of the Directive].
228. Art, 12, title
Article 12
Article 12
Article 12
Claims to fair compensation
Claims to fair compensation
Claims to fair compensation
229. Art. 12, sub-
Member States may provide
Member States
with
Member States may provide
para 1 (EP)/
that where an author has
compensation-sharing
that where an author has
Art. 12,
transferred or licensed a right
systems between authors and transferred or licensed a right
introductory
to a publisher, such a transfer
publishers for exceptions
to a publisher, such a transfer
part
or a licence constitutes a
and limitations may provide or a licence constitutes a
(Council)]
sufficient legal basis for the
that where an author has
sufficient legal basis for the
publisher to claim a share of transferred or licensed a right publisher to claim
be entitled
the compensation for the uses to a publisher, such a transfer
to a share of
:
of the work made under an
or a licence constitutes a
exception or limitation to the sufficient legal basis for the
[remaining part of this
transferred or licensed right.
publisher to claim a share of
paragraph of the COM
the compensation for the uses
proposal was moved to new
of the work made under an
point (a) (see row 230)]
exception or limitation to the
12513/18
BM/np
178
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
transferred or licensed right
,
provided that an equivalent
compensation-sharing
system was in operation in
that Member State before 12
November 2015.
230. Art. 12, point
(a) the compensation for
(a)
the uses of the work made
under an exception or
limitation to the transferred or
licensed right.
; and
[See Parliament’s sub-
paragraph 1 of Article 12
(row 229)]
231. Art. 12, point
(b) the remuneration for
(b)
public lending provided for
in Article 6(1) of Directive
2006/115/EC.
232. Art. 12, sub-
The first paragraph shall be
para 2
without prejudice to the
arrangements in Member
States concerning public
lending rights, the
management of rights not
based on exceptions or
12513/18
BM/np
179
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
limitations to copyright, such
as extended collective
licensing schemes, or
concerning remuneration
rights on the basis of
national law.
233.
CHAPTER 1a
Protection of sport event
organizers
234. Art. 12a, title
Article 12a
Protection of sport event
organizers
235. Art. 12a
Member States shall provide
sport event organizers with
the rights provided for in
Article 2 and Article 3 (2) of
Directive 2001/29/EC and
Article 7 of Directive
2006/115/EC.
236.
CHAPTER 2
CHAPTER 2
CHAPTER 2
Certain uses of protected
Certain uses of protected
Certain uses of protected
content by online services
content by online services
content by online services
237. Art. 13, title
Article 13
Article 13
Article 13
Use of protected content by
Use of protected content by
12513/18
BM/np
180
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
information society service
information society online
providers storing and giving
content sharing service
Use of protected content by
access to large amounts of
providers storing and giving
information society
online
works and other subject-
access to large amounts of
content sharing service
matter uploaded by their
works and other subject-
providers storing
users
matter uploaded by their
users
238. Art. 13, para 1 1.
Information society
1.
Without prejudice to
1.
Member States shall
service providers that store
Article 3(1) and (2) of
provide that an online
and provide to the public
Directive 2001/29/EC, online content sharing service
access to large amounts of
content sharing Information
provider performs an act of
works or other subject-matter society service providers that
communication to the
uploaded by their users shall, store and provide
perform an public or an act of making
in cooperation with
act of communication to the
available to the public when
rightholders, take measures to public access to large
it gives the public access to
ensure the functioning of
amounts of works or other
copyright protected works
agreements concluded with
subject-matter uploaded by
or other protected subject
rightholders for the use of
their users
. They shall in
matter uploaded by its
their works or other subject-
cooperation with
users.
matter or to prevent the
rightholders, take measures to
availability on their services
ensure the functioning of
An online content sharing
of works or other subject-
agreements concluded with
service provider shall
matter identified by
rightholders for the use of
obtain an authorisation
rightholders through the
their works or other subject-
from the rightholders
cooperation with the service
matter or to prevent the
referred to in Article 3(1)
providers. Those measures,
availability on their services
and giving access to large
such as the use of effective
of works or other subject-
amounts of
(2) of Directive
content recognition
matter identified by
2001/29/EC in order to
12513/18
BM/np
181
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
technologies, shall be
rightholders through the
communicate or make
appropriate and
cooperation with the service
available to the public
proportionate. The service
providers. Those measures,
works or other subject
providers shall provide
such as the use of effective
matter. Where no such
rightholders with adequate
content recognition
authorisation has been
information on the
technologies, shall be
obtained, the service
functioning and the
therefore conclude fair and
provider shall prevent the
deployment of the measures, appropriate and
availability on its service of
as well as, when relevant,
proportionate. The service
those works and other
adequate reporting on the
providers shall provide
subject-matter uploaded by
recognition and use of the
rightholders with adequate
matter, including through
works and other subject-
information on the
the application of measures
matter.
functioning and the
referred to in paragraph 4.
deployment of the measures,
This subparagraph shall
as well as, when relevant,
apply without prejudice to
adequate reporting on the
exceptions and limitations
recognition and use of the
provided for in Union law.
works and other subject-
matter.
licensing agreements Member States shall
with right holders.
provide that when an
authorisation has been
obtained, including via a
licensing agreement, by an
online content sharing
service provider, this
authorisation shall also
cover acts of uploading by
the users of the service
falling within Article 3 of
12513/18
BM/np
182
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
Directive 2001/29/EC when
they are not acting on a
commercial basis.
[Last two sentences of COM
proposal were moved to
Council’s paragraphs 5 and 6
respectively]
239. Art. 13, para 2
2. Member States shall
(EP)
ensure that the
Licensing
agreements which are
concluded by online content
sharing service providers
with right holders for the
acts of communication
referred to in paragraph 1 put
in place complaints and
redress mechanisms that are
available to users in case of
disputes over the application
of the measures referred to in
paragraph 1.
, shall cover the
liability for works uploaded
by the users
of such online
content sharing services in
line with the terms and
conditions set out in the
licensing agreement,
12513/18
BM/np
183
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
provided that such users do
not act for commercial
purposes.
[See Council’s paragraph 1,
subparagraph 3 (row 238)]
240. Art. 13, para
2a.
Member States shall
2a (EP)
provide that where right
holders do not wish to
conclude licensing
agreements, online content
sharing service providers
and right holders shall
cooperate in good faith in
order to ensure that
unauthorised protected
works or other subject matter
are not available on their
services. Cooperation
between online content
service providers and right
holders shall not lead to
preventing the availability of
non-infringing works or
other protected subject
matter, including those
covered by an exception or
12513/18
BM/np
184
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
limitation to copyright.
241. Art. 13, para 2 2.
Member States shall
2b. Members States shall
[Paragraph 2 of the COM
/ para 2b (EP) ensure that the service
ensure that online content
proposal was moved to new
providers referred to in
sharing service providers
paragraph 7 of Council’s
paragraph 1 put in place
referred to in paragraph 1
text]
complaints and redress
put in place effective and
mechanisms that are available
expeditious complaints and
to users in case of disputes
redress mechanisms that are
over the application of the
available to users in case the
measures referred to in
cooperation referred to in
paragraph 1.
paragraph 2a leads to
unjustified removals of their
content. Any complaint filed
under such mechanisms
shall be processed without
undue delay and be subject
to human review. Right
holders shall reasonably
justify their decisions to
avoid arbitrary dismissal of
complaints. Moreover, in
accordance with Directive
95/46/EC, Directive
2002/58/EC and the General
Data Protection Regulation,
the cooperation shall not
lead to any identification of
individual users nor the
12513/18
BM/np
185
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
processing of their personal
data. Member States shall
also ensure that users have
access to an independent
body for the resolution of
disputes as well as to a court
or another relevant judicial
authority to assert the use of
an exception or limitation to
copyright rules.
[See Council’s Article 13(7)
(row 252)]
242. Art. 13, para 3 3.
Member States shall
3.
As of [date of entry
[See new paragraph 8 of
(EP)
facilitate, where appropriate,
into force of this directive],
Council’s text]
the cooperation between the
the Commission and the
information society service
Member States shall facilitate
providers and rightholders
where appropriate, the
through stakeholder dialogues cooperation
organise
to define best practices, such
dialogues between the
as appropriate and
information society service
proportionate content
providers and rightholders
recognition technologies,
through stakeholder dialogues
taking into account, among
stakeholders to harmonise
others, the nature of the
and to define best practices,
services, the availability of
such as appropriate and
the technologies and their
proportionate content
effectiveness in light of
recognition technologies,
12513/18
BM/np
186
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
technological developments. taking into account, among
others, the nature of the
services, the availability of
the technologies and their
effectiveness in light of
technological developments.
and issue guidance to ensure
the functioning of licensing
agreements and on
cooperation between online
content sharing service
providers and right holders
for the use of their works or
other subject matter within
the meaning of this
Directive. When defining
best practices, special
account shall be taken of
fundamental rights, the use
of exceptions and limitations
as well as ensuring that the
burden on SMEs remains
appropriate and that
automated blocking of
content is avoided.
243. Art. 13, para 3
3.
When an online
(Council)
content sharing service
provider performs an act of
12513/18
BM/np
187
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
communication to the
public or an act of making
available to the public, it
shall not be eligible for the
exemption of liability
provided for in Article 14 of
Directive 2000/31/EC for
unauthorised acts of
communication to the
public and making
available to the public,
without prejudice to the
possible application of
Article 14 of Directive
2000/31/EC to those
services for purposes other
than copyright relevant
acts.
244. Art. 13, para
4.
In the absence of the
4,
authorisation referred to in
introductory
the second subparagraph of
part
paragraph 1, Member
States shall provide that an
online content sharing
service provider shall not be
liable for acts of
communication to the
public or making available
12513/18
BM/np
188
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
to the public within the
meaning of this Article
when:
245. Art. 13, para
(a) it demonstrates that it
4, point (a)
has made best efforts to
prevent the availability of
specific works or other
subject matter by
implementing effective and
proportionate measures, in
accordance with paragraph
5, to prevent the availability
on its services of the specific
works or other subject
matter identified by
rightholders and for which
the rightholders have
provided the service with
relevant and necessary
information for the
application of these
measures; and
246. Art. 13, para
(b) upon notification by
4, point (b)
rightholders of works or
other subject matter, it has
12513/18
BM/np
189
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
acted expeditiously to
remove or disable access to
these works or other
subject matter and it
demonstrates that it has
made its best efforts to
prevent their users
future
availability through the
measures referred to in
point (a).
247. Art. 13, para
5.
The measures
5,
referred to in point (a) of
introductory
paragraph 4 shall be
part
effective and proportionate,
taking into account, among
other factors:
248. Art. 13, para
(a) the nature and size of
5, point (a)
the services, in particular
whether they are provided
by a microenterprise or a
small-sized enterprise
within the meaning of Title
I of the Annex to
Commission
Recommendation
2003/361/EC, and their
12513/18
BM/np
190
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
audience;
249. Art. 13, para
(b) the amount and the
5, point (b)
type of works or other
subject matter uploaded by
the users of the services;
250. Art. 13, para
(c) the availability and
5, point (c)
costs
of the measures as
well as their effectiveness in
light of technological
developments in line with
the industry best practice
referred to in paragraph 8.
251. Art. 13, para 6
6.
Member States shall
ensure that online content
sharing service providers
and rightholders cooperate
with each other in a diligent
manner to ensure the
effective functioning of the
measures referred to in
point (a) of paragraph 4
over time. Online content
sharing service providers
shall provide rightholders,
at their request, with
adequate information on
12513/18
BM/np
191
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
the deployment and
functioning of these
measures to allow the
assessment of their
effectiveness, in particular
information on the type of
measures used and, where
licensing agreements are
concluded between service
providers and rightholders,
information on the use of
content covered by the
agreements.
252. Art. 13, para 7
7.
Member States shall
ensure that
the measures
referred to in paragraph 4
are implemented by the
online content sharing
service provider without
prejudice to the possibility
for their users to benefit
from exceptions or
limitations to copyright.
For that purpose, the
service providers referred to
in paragraph 1
shall put in
place
a complaints and
redress
mechanisms that are
12513/18
BM/np
192
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
is available to users of the
service in case of disputes
over the application of the
measures reffered to in
paragraph 1
to their content.
Complaints submitted
under this mechanism shall
be processed by the online
content sharing service
provider in cooperation
with relevant rightholders
within a reasonable period
of time. Rightholders shall
duly justify the reasons for
their requests to remove or
block access to their specific
works or other subject
matter. Member States
shall endeavour to put in
place independent bodies to
assess complaints related to
the application of the
measures.
[Paragraph 2 of the COM
proposal, amended]
253. Art. 13, para 8
8.
The Commission and
the Member States shall
12513/18
BM/np
193
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
encourage stakeholder
dialogues to define best
practices
for the measures
referred to in point (a) of
paragraph 4. Member
States shall also endeavour
to establish mechanisms to
facilitate the assessment of
the effectiveness and
proportionality of these
measures and provide the
Commission regularly with
information on those
mechanisms. The
Commission shall, in
consultation with online
content sharing service
providers, rightholders and
other relevant stakeholders
and taking into account the
results of the stakeholder
dialogues and the national
mechanisms, issue guidance
on the application of the
measures referred to in
point (a) of paragraph 4.
[Paragraph 3 of the COM
12513/18
BM/np
194
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
proposal, reworded]
254. Art. 13a, title
Article 13a
255. Art. 13a, sub-
Member States shall provide
para 1
that disputes between
successors in title and
information society services
regarding the application of
Article 13(1) may be subject
to an alternative dispute
resolution system.
256. Art. 13a, sub-
Member States shall
para 2
establish or designate an
impartial body with the
necessary expertise, with the
aim of helping the parties to
settle their disputes under
this system.
257. Art. 13a, sub-
The Member States shall
para 3
inform the Commission of
the establishment of this
body no later than (date
mentioned in Article 21(1)).
258. Art. 13b, title
Article 13b
12513/18
BM/np
195
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
Use of protected content by
information society services
providing automated image
referencing
259. Art. 13b
Member States shall ensure
that information society
service providers that
automatically reproduce or
refer to significant amounts
of copyright-protected visual
works and make them
available to the public for
the purpose of indexing and
referencing conclude fair
and balanced licensing
agreements with any
requesting rightholders in
order to ensure their fair
remuneration. Such
remuneration may be
managed by the collective
management organisation of
the rightholders concerned.
260.
TITLE IV
MEASURES TO
12513/18
BM/np
196
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
ACHIEVE A WELL-
FUNCTIONING
MARKETPLACE FOR
COPYRIGHT
261.
CHAPTER 3
CHAPTER 3
CHAPTER 3
Fair remuneration in
Fair remuneration in
Fair remuneration in
contracts of authors and
contracts of authors and
exploitation contracts of
performers
performers
authors and performers
262. Art. -14, title
Article -14
Principle of fair and
proportionate remuneration
263. Art. -14, para
1.
Member States shall
1
ensure that authors and
performers receive fair and
proportionate remuneration
for the exploitation of their
works and other subject
matter, including for their
online exploitation. This may
be achieved in each sector
through a combination of
agreements, including
collective bargaining
agreements, and statutory
12513/18
BM/np
197
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
remuneration mechanisms.
264. Art. -14, para
2.
Paragraph 1 shall not
2
apply where an author or
performer grants a non-
exclusive usage right for the
benefit of all users free of
charge.
265. Art. -14, para
3.
Member States shall
3
take account of the
specificities of each sector in
encouraging the
proportionate remuneration
for rights granted by authors
and performers.
266. Art. -14, para
4.
Contracts shall specify
4
the remuneration applicable
to each mode of exploitation.
267. Art. 14, title
Article 14
Article 14
Article 14
Transparency obligation
Transparency obligation
Transparency obligation
268. Art. 14, para 1 1.
Member States shall
1.
Member States shall
1.
Member States shall
ensure that authors and
ensure that authors and
ensure that authors and
performers receive on a
performers receive on a
performers receive on a
regular basis and taking into
regular basis,
not less than
regular basis
, at least once a
account the specificities of
once a year , and taking into
year, and taking into account
12513/18
BM/np
198
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
each sector, timely, adequate account the specificities of
the specificities of each
and sufficient information on each sector
and the relative
sector, timely, adequate and
the exploitation of their
importance of each
sufficient information on the
works and performances from
individual contribution,
exploitation of their works
those to whom they have
timely adequate and
and performances from those
licensed or transferred their
sufficient
, accurate, relevant to whom they have licensed
rights, notably as regards
and comprehensive
or transferred their rights
or
modes of exploitation,
information on the
their successors in title,
revenues generated and
exploitation of their works
notably as regards modes of
remuneration due.
and performances from those exploitation, revenues
to whom they have licensed
generated and remuneration
or transferred their rights,
due.
notably as regards modes of
exploitation
, direct and
indirect revenues generated,
and remuneration due.
269. Art. 14, para
1a.
Member States shall
1a. Member States shall
1a
ensure that where the
ensure that where the rights
licensee or transferee of
referred to in paragraph 1
rights of authors and
have subsequently been
performers subsequently
licensed to another party,
licenses those rights to
authors and performers
another party, such party
may, at their request,
shall share all information
receive from those third
referred to in paragraph 1
parties additional
with the licensee or
information if their first
transferee.
contractual counterpart
does not hold all the
12513/18
BM/np
199
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
information that would be
necessary for the purposes
of the information
provision set out in
paragraph 1. Member
States may provide that
such request to those third
parties is made directly by
the author or performer or
indirectly through the
contractual counterpart of
the author or the
performer.
270. Art. 14, para
The main licensee or
1a, sub-para 2
transferee shall pass all the
information referred to in
the first subparagraph on to
the author or performer.
That information shall be
unchanged, except in the
case of commercially
sensitive information as
defined by Union or national
law, which, without
prejudice to Articles 15 and
16a, may be subject to a non-
disclosure agreement, for the
purpose of preserving fair
12513/18
BM/np
200
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
competition. Where the main
licensee or transferee does
not provide the information
as referred to in this
subparagraph in a timely
manner, the author or
performer shall be entitled to
request that information
directly from the sub-
licensee.
[See Council’s Article 14(1a)
(row 269)]
271. Art. 14, para 2 2.
The obligation in
2.
The obligation in
2.
The obligation in
paragraph 1 shall be
paragraph 1 shall be
paragraph 1 shall be
proportionate and effective
proportionate and effective
proportionate and effective
and shall ensure an
and shall ensure an
and shall ensure an
appropriate level of
appropriate
a high level of
appropriate level of
transparency in every sector. transparency in every sector. transparency in every sector.
However, in those cases
However, in those cases
However, in those
Member
where the administrative
where the administrative
States may provide that in
burden resulting from the
burden resulting from the
duly justified cases where
obligation would be
obligation would be
the administrative burden
disproportionate in view of
disproportionate in view of
resulting from the obligation
the revenues generated by the the revenues generated by the
in paragraph 1 would
exploitation of the work or
exploitation of the work or
be
become disproportionate in
performance, Member States performance, Member States view of the revenues
may adjust the obligation in
may adjust the obligation in
generated by the exploitation
12513/18
BM/np
201
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
paragraph 1, provided that the paragraph 1, provided that the of the work or performance,
obligation remains effective
obligation remains effective
Member States may adjust
and ensures an appropriate
and ensures an appropriate
a
the obligation in paragraph 1,
level of transparency.
high level of transparency.
provided that
is limited to
the obligation remains
effective
types and ensures an
appropriate level of
transparency.
information
that can reasonably be
expected in such cases.
272. Art. 14, para 3 3.
Member States may
Deleted
3.
Member States may
decide that the obligation in
decide that the obligation in
paragraph 1 does not apply
paragraph 1 does not apply
when the contribution of the
when the contribution of the
author or performer is not
author or performer is not
significant having regard to
significant having regard to
the overall work or
the overall work or
performance.
performance.
273. Art. 14, para
3a. Members States may
3a
provide that for agreements
subject to or based on
collective bargaining
agreements the
transparency rules of the
relevant collective
bargaining agreement are
applicable provided that
12513/18
BM/np
202
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
they meet the minimum
criteria laid down in the
national provisions adopted
in conformity with the
requirements of paragraphs
1 to 3.
274. Art. 14, para 4 4.
Paragraph 1 shall not be 4.
Paragraph 1 shall not be 4.
Paragraph 1 shall not be
applicable to entities subject
applicable to entities subject
applicable to
agreements
to the transparency
to the transparency
concluded by entities subject
obligations established by
obligations established by
to the transparency
Directive 2014/26/EU.
Directive 2014/26/EU
or to
obligations established by
collective bargaining
defined in Article 3(a) and
agreements, where those
(b) of Directive 2014/26/EU.
obligations or agreements
or by other entities subject
provide for transparency
to the national rules
requirements comparable to implementing Directive
those referred to in
2014/26/EU.
paragraph 2.
275. Art. 15, title
Article 15
Article 15
Article 15
Contract adjustment
Contract adjustment
Contract adjustment
mechanism
mechanism
mechanism
276. Art. 15, [para Member States shall ensure
Member States shall ensure
,
1.
Member States shall
1 (Council)]
that authors and performers
in the absence of collective
ensure that authors and
are entitled to request
bargaining agreements
performers are entitled to
additional, appropriate
providing for a comparable
request additional,
remuneration from the party
mechanism, that authors and appropriate remuneration
12513/18
BM/np
203
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
with whom they entered into performers
or any
from the party with whom
a contract for the exploitation
representative organisation
they entered into a contract
of the rights when the
acting on their behalf are
for the exploitation of the
remuneration originally
entitled to request
claim
rights
or their successors in
agreed is disproportionately
additional
, appropriate
and
title, when the remuneration
low compared to the
fair remuneration from the
originally agreed is
turns out
subsequent relevant revenues party with whom they entered
to be disproportionately low
and benefits derived from the into a contract for the
compared to the subsequent
exploitation of the works or
exploitation of the rights
relevant revenues and
performances.
when the remuneration
benefits derived from the
originally agreed is
actual exploitation of the
disproportionately low
works or performances.
compared to the subsequent
relevant
direct or indirect
revenues and benefits derived
from the exploitation of the
works or performances.
[See Council’s Article 15(1a)
(row277)]
277. Art. 15, para
1a. Members States may
1a
provide that for agreements
subject to or based on
collective bargaining
agreements the rules of the
relevant collective
bargaining agreement for
the adjustment of
12513/18
BM/np
204
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
remuneration are
applicable instead of the
national provisions
implementing the contract
adjustment mechanism.
278. Art. 15, para 2
2.
Paragraph 1 shall not
be applicable to agreements
concluded by entities
defined in Article 3(a) and
(b) of Directive 2014/26/EU
or by other entities subject
to the national rules
implementing Directive
2014/26/EU.
279. Art. 16, title
Article 16
Article 16
Article 16
Dispute resolution
Dispute resolution
mechanism
mechanism
Dispute resolution
mechanismprocedure
280. Art. 16, [para Member States shall provide Member States shall provide
1.
Member States shall
1 (Council)]
that disputes concerning the
that disputes concerning the
provide that disputes
transparency obligation under transparency obligation under concerning the transparency
Article 14 and the contract
Article 14 and the contract
obligation under Article 14
adjustment mechanism under adjustment mechanism under and the contract adjustment
Article 15 may be submitted
Article 15 may be submitted
mechanism under Article 15
to a voluntary, alternative
to a voluntary, alternative
may be submitted to a
dispute resolution procedure. voluntary, alternative dispute
12513/18
BM/np
205
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
dispute resolution procedure.
Member States shall ensure
resolution procedure.
that representative
organisations of authors and
performers may initiate such
procedures at the request of
one or more authors and
performers.
[See Council’s Article 16(2)
(row 281)]
281. Art. 16, para 2
[See Parliament’s Article 16 2.
Member States shall
last phrase (row 280)]
ensure that representative
organisations of authors
and performers, including
collective management
organisations, may initiate
such disputes on behalf of
one or more authors and
performers at their request.
282. Art. 16a
Article 16a
(Council), title
Contractual provisions
283. Art. 16a
Member States shall ensure
(Council)
that any contractual
provision which prevents
the compliance with the
12513/18
BM/np
206
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
provisions in Articles 14
and 15 of this Directive
shall be unenforceable in
relation to authors and
performers.
284. Art. 16a (EP),
Article 16 a
title
Right of revocation
285. Art. 16a (EP),
1.
Member States shall
para 1
ensure that where an author
or a performer has licensed
or transferred her or his
rights concerning a work or
other protected subject-
matter on an exclusive basis,
the author or performer has
a right of revocation where
there is an absence of
exploitation of the work or
other protected subject
matter or where there is a
continuous lack of regular
reporting in accordance with
Article 14. Member States
may provide for specific
provisions taking into
account the specificities of
12513/18
BM/np
207
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
different sectors and works
and anticipated exploitation
period, notably provide for
time limits for the right of
revocation.
286. Art. 16a (EP),
2.
The right of revocation
para 2
provided for in paragraph 1
may be exercised only after a
reasonable time from the
conclusion of the licence or
transfer agreement, and only
upon written notification
setting an appropriate
deadline by which the
exploitation of the licensed
or transferred rights is to
take place. After the
expiration of that deadline,
the author or performer may
choose to terminate the
exclusivity of the contract
instead of revoking the
rights. Where a work or
other subject-matter contains
the contribution of a
plurality of authors or
performers, the exercise of
the individual right of
12513/18
BM/np
208
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
revocation of such authors
or performers shall be
regulated by national law,
laying down the rules on the
right of revocation for
collective works, taking into
account the relative
importance of the individual
contributions.
287. Art. 16a (EP),
3.
Paragraphs 1 and 2
para 3
shall not apply if the non-
exercise of the rights is
predominantly due to
circumstances which the
author or the performer can
be reasonably expected to
remedy.
288. Art. 16a (EP),
4.
Contractual or other
para 4
arrangements derogating
from the right of revocation
shall be lawful only if
concluded by means of an
agreement which is based on
a collective bargaining
agreement.
12513/18
BM/np
209
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
289.
TITLE V
TITLE V
TITLE V
FINAL PROVISIONS
FINAL PROVISIONS
FINAL PROVISIONS
290. Art. 17,
Article 17
Article 17
Article 17
title
Amendments to other
Amendments to other
Amendments to other
directives
directives
directives
291. Art. 17, para 1 1.
Directive 96/9/EC is
1.
Directive 96/9/EC is
1.
Directive 96/9/EC is
amended as follows:
amended as follows:
amended as follows:
292. Art. 17, para
(a) In Article 6(2), point
(a) In Article 6(2), point
(a) In Article 6(2), point
1, point (a)
(b) is replaced by the
(b) is replaced by the
(b) is replaced by the
following:
following:
following:
293. Art. 17, para
"(b) where there is use for
"(b) where there is use
"(b) where there is use for
1, point (a)
the sole purpose of
for the sole purpose of
the sole purpose of
illustration for teaching or
illustration for teaching
illustration for teaching or
scientific research, as long
or scientific research, as
scientific research, as long
as the source is indicated
long as the source is
as the source is indicated
and to the extent justified
indicated and to the
and to the extent justified
by the non-commercial
extent justified by the
by the non-commercial
purpose to be achieved,
non-commercial purpose
purpose to be achieved,
without prejudice to the
to be achieved, without
without prejudice to the
exceptions and the
prejudice to the
exceptions and the
limitation provided for in
exceptions and the
limitation provided for in
Directive [this Directive];"
limitation provided for in
Articles 3 and 4 of
Directive [this
Directive [this Directive];"
Directive];"
12513/18
BM/np
210
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
294. Art. 17, para
(b) In Article 9, point (b) is (b) In Article 9, point (b) is (b) In Article 9, point (b) is
1, point (b)
replaced by the following:
replaced by the following:
replaced by the following:
295. Art. 17, para
"(b) in the case of
"(b) in the case of
"(b) in the case of
1, point (b)
extraction for the purposes
extraction for the purposes
extraction for the purposes
of illustration for teaching
of illustration for teaching
of illustration for teaching
or scientific research, as
or scientific research, as
or scientific research, as
long as the source is
long as the source is
long as the source is
indicated and to the extent
indicated and to the extent
indicated and to the extent
justified by the non-
justified by the non-
justified by the non-
commercial purpose to be
commercial purpose to be
commercial purpose to be
achieved, without
achieved, without
achieved, without
prejudice to the exceptions
prejudice to the exceptions
prejudice to the exceptions
and the limitation
and the limitation provided
and the limitation
provided for in Directive
for in Directive [this
provided for in
Articles 3
[this Directive];"
Directive];"
and 4 of Directive [this
Directive];"
296. Art. 17, para 2 2.
Directive 2001/29/EC
2.
Directive 2001/29/EC
2.
Directive 2001/29/EC
is amended as follows:
is amended as follows:
is amended as follows:
297. Art. 17, para
(a) In Article 5(2), point (c) (a) In Article 5(2), point (c) (a) In Article 5(2), point (c)
2, point (a)
is replaced by the following: is replaced by the following:
is replaced by the following:
298.
Art. 17, para
"(c) in respect of specific
"(c) in respect of specific
"(c) in respect of specific
2, point (a)
acts of reproduction made
acts of reproduction made
acts of reproduction made
by publicly accessible
by publicly accessible
by publicly accessible
libraries, educational
libraries, educational
libraries, educational
12513/18
BM/np
211
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
establishments or museums,
establishments or
establishments or
or by archives, which are
museums, or by archives,
museums, or by archives,
not for direct or indirect
which are not for direct or
which are not for direct or
economic or commercial
indirect economic or
indirect economic or
advantage, without
commercial advantage,
commercial advantage,
prejudice to the exceptions
without prejudice to the
without prejudice to the
and the limitation provided
exceptions and the
exceptions and the
for in Directive [this
limitation provided for in
limitation
exception
Directive];"
Directive [this Directive];"
provided for in
Article 5
of Directive [this
Directive];"
299. Art. 17, para
(b) In Article 5(3), point (a) (b) In Article 5(3), point (a) (b) In Article 5(3), point (a)
2, point (b)
is replaced by the following: is replaced by the following:
is replaced by the following:
300.
Art. 17, para
"(a) use for the sole purpose "(a) use for the sole purpose
"(a) use for the sole
2, point (b)
of illustration for teaching
of illustration for teaching
purpose of illustration for
or scientific research, as
or scientific research, as
teaching or scientific
long as the source,
long as the source, including
research, as long as the
including the author's name, the author's name, is
source, including the
is indicated, unless this
indicated, unless this turns
author's name, is
turns out to be impossible
out to be impossible and to
indicated, unless this turns
and to the extent justified
the extent justified by the
out to be impossible and to
by the non-commercial
non-commercial purpose to
the extent justified by the
purpose to be achieved,
be achieved, without
non-commercial purpose
without prejudice to the
prejudice to the exceptions
to be achieved, without
exceptions and the
and the limitation provided
prejudice to the exceptions
limitation provided for in
for in Directive [this
and the limitation
provided for in
Articles 3
12513/18
BM/np
212
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
Directive [this Directive];"
Directive];"
and 4 of Directive [this
Directive];"
301. Art. 17, para
(c) In Article 12(4), the
(c) In Article 12(4), the
(c) In Article 12(4), the
2, point (c)
following points are added:
following points are added:
following points are added:
302. Art. 17, para
"(e) to examine the impact
"(e) to examine the impact
"(e) to examine the impact
2, point (c)
of the transposition of
of the transposition of
of the transposition of
Directive [this Directive] on Directive [this Directive] on
Directive [this Directive]
the functioning of the
the functioning of the
on the functioning of the
internal market and to
internal market and to
internal market and to
highlight any transposition
highlight any transposition
highlight any transposition
difficulties;
difficulties;
difficulties;
303. Art. 17, para
(f) to facilitate the exchange (f) to facilitate the exchange
(f) to facilitate the
2, point (c)
of information on the
of information on the
exchange of information on
relevant developments in
relevant developments in
the relevant developments
legislation and case law as
legislation and case law as
in legislation and case law
well as on the practical
well as on the practical
as well as on the practical
application of the measures
application of the measures
application of the measures
taken by Member States to
taken by Member States to
taken by Member States to
implement Directive [this
implement Directive [this
implement Directive [this
Directive];
Directive];
Directive];
304. Art. 17, para
(g) to discuss any other
(g) to discuss any other
(g) to discuss any other
2, point (c)
questions arising from the
questions arising from the
questions arising from the
application of Directive
application of Directive
application of Directive
[this Directive]."
[this Directive]."
[this Directive]."
12513/18
BM/np
213
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
305. Art. 17a, title
Article 17 a
306. Art. 17a
Member States may adopt or
maintain in force broader
provisions, compatible with
the exceptions and
limitations existing in Union
law, for uses covered by the
exceptions or the limitation
provided for in this
Directive.
307. Art. 18
Article 18
Article 18
Article 18
Application in time
Application in time
Application in time
308. Art. 18, para 1 1.
This Directive shall
1.
This Directive shall
1.
This Directive shall
apply in respect of all works
apply in respect of all works
apply in respect of all works
and other subject-matter
and other subject-matter
and other subject-matter
which are protected by the
which are protected by the
which are protected by the
Member States' legislation in Member States' legislation in Member States' legislation in
the field of copyright on or
the field of copyright on or
the field of copyright on or
after [the date mentioned in
after [the date mentioned in
after [the date mentioned in
Article 21(1)].
Article 21(1)].
Article 21(1)].
309. Art. 18, para 2 2.
The provisions of
Deleted
2.
[Deleted]
Article 11 shall also apply to
press publications published
12513/18
BM/np
214
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
before [the date mentioned in
Article 21(1)].
310. Art. 18, para 3 3.
This Directive shall
3.
This Directive shall
3.
This Directive shall
apply without prejudice to
apply without prejudice to
apply without prejudice to
any acts concluded and rights any acts concluded and rights any acts concluded and rights
acquired before [the date
acquired before [the date
acquired before [the date
mentioned in Article 21(1)].
mentioned in Article 21(1)].
mentioned in Article 21(1)].
311. Art. 19, title
Article 19
Article 19
Article 19
Transitional provision
Transitional provision
Transitional provision
312. Art. 19
Agreements for the licence or Agreements for the licence or Agreements for the licence or
transfer of rights of authors
transfer of rights of authors
transfer of rights of authors
and performers shall be
and performers shall be
and performers shall be
subject to the transparency
subject to the transparency
subject to the transparency
obligation in Article 14 as
obligation in Article 14 as
obligation in Article 14 as
from [one year after the date from [one year after the date
from [one year after the date
mentioned in Article 21(1)].
mentioned in Article 21(1)].
mentioned in Article 21(1)].
313. Art. 20, title
Article 20
Article 20
Article 20
Protection of personal data
Protection of personal data
Protection of personal data
314. Art. 20
The processing of personal
The processing of personal
The processing of personal
data carried out within the
data carried out within the
data carried out within the
framework of this Directive
framework of this Directive
framework of this Directive
shall be carried out in
shall be carried out in
shall be carried out in
compliance with Directives
compliance with Directives
compliance with Directives
95/46/EC and 2002/58/EC.
95/46/EC and 2002/58/EC.
95/46/EC and 2002/58/EC.
12513/18
BM/np
215
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
315. Art. 21, title
Article 21
Article 21
Article 21
Transposition
Transposition
Transposition
316. Art. 21, para 1 1.
Member States shall
1.
Member States shall
1.
Member States shall
bring into force the laws,
bring into force the laws,
bring into force the laws,
regulations and
regulations and
regulations and
administrative provisions
administrative provisions
administrative provisions
necessary to comply with this necessary to comply with this necessary to comply with this
Directive by [12 months after Directive by [12 months after Directive by [12
24 months
entry into force] at the latest. entry into force] at the latest. after entry into force] at the
They shall forthwith
They shall forthwith
latest. They shall forthwith
communicate to the
communicate to the
communicate to the
Commission the text of those Commission the text of those Commission the text of those
provisions.
provisions.
provisions.
317. Art. 21, para
When Member States adopt
When Member States adopt
When Member States adopt
1, sub-para 2
those provisions, they shall
those provisions, they shall
those provisions, they shall
contain a reference to this
contain a reference to this
contain a reference to this
Directive or be accompanied Directive or be accompanied Directive or be accompanied
by such a reference on the
by such a reference on the
by such a reference on the
occasion of their official
occasion of their official
occasion of their official
publication. Member States
publication. Member States
publication. Member States
shall determine how such
shall determine how such
shall determine how such
reference is to be made.
reference is to be made.
reference is to be made.
318. Art. 21, para 2 2.
Member States shall
2.
Member States shall
2.
Member States shall
communicate to the
communicate to the
communicate to the
Commission the text of the
Commission the text of the
Commission the text of the
12513/18
BM/np
216
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
main provisions of national
main provisions of national
main provisions of national
law which they adopt in the
law which they adopt in the
law which they adopt in the
field covered by this
field covered by this
field covered by this
Directive.
Directive.
Directive.
319. Art. 22, title
Article 22
Article 22
Article 22
Review
Review
Review
320. Art. 22, para 1 1.
No sooner than [five
1.
No sooner than [five
1.
No sooner than [five
years after the date mentioned years after the date mentioned years after the date mentioned
in Article 21(1)], the
in Article 21(1)], the
in Article 21(1)], the
Commission shall carry out a Commission shall carry out a Commission shall carry out a
review of this Directive and
review of this Directive and
review of this Directive and
present a report on the main
present a report on the main
present a report on the main
findings to the European
findings to the European
findings to the European
Parliament, the Council and
Parliament, the Council and
Parliament, the Council and
the European Economic and
the European Economic and
the European Economic and
Social Committee.
Social Committee.
Social Committee.
321. Art. 22, para 2 2.
Member States shall
2.
Member States shall
2.
Member States shall
provide the Commission with provide the Commission with provide the Commission with
the necessary information for the necessary information for the necessary information for
the preparation of the report
the preparation of the report
the preparation of the report
referred to in paragraph 1.
referred to in paragraph 1.
referred to in paragraph 1.
322. Art. 23, title
Article 23
Article 23
Article 23
Entry into force
Entry into force
Entry into force
323. Art. 23
This Directive shall enter into This Directive shall enter into This Directive shall enter into
12513/18
BM/np
217
ANNEX
ECOMP.3.B
EN
Row
Location
COMMISSION
EP TEXT
POSSIBLE
PROPOSAL
P8_TA-PROV(2018)0337
COUNCIL TEXT
COMPROMISE
COM(2016)593
A8-0245/2018
9134/18
SOLUTION
force on the twentieth day
force on the twentieth day
force on the twentieth day
following that of its
following that of its
following that of its
publication in the
Official
publication in the
Official
publication in the
Official
Journal of the European
Journal of the European
Journal of the European
Union.
Union.
Union.
324. Art. 24, title
Article 24
Article 24
Article 24
Addressees
Addressees
Addressees
325. Art. 24
This Directive is addressed to This Directive is addressed to This Directive is addressed to
the Member States.
the Member States.
the Member States.
12513/18
BM/np
218
ANNEX
ECOMP.3.B
EN