Council of the
European Union
Brussels, 30 November 2018
(OR. en)
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2016/0280(COD)
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AUDIO 115
COMPET 837
CULT 158
EDUC 452
PI 174
RECH 514
TELECOM 444
CODEC 2190
DIGIT 243
NOTE
From:
Presidency
To:
Permanent Representatives Committee
Subject:
Proposal for a Directive of the European Parliament and of the Council on
Copyright in the Digital Single Market
- Update of negotiating mandate
I.
INTRODUCTION
On 25 May 2018, Coreper granted the Presidency a mandate (9134/18) to start negotiations with the
European Parliament (EP) on the above mentioned proposal with a view to reaching a first reading
agreement. The EP adopted its negotiating mandate on 12 September 2018 (11520/18).
Trilogue negotiations started on 2 October 2018. Meanwhile two more trilogues took place on
25 October and 26 November 2018, and a number of technical meetings were held. The 4th trilogue
is scheduled to take place on 3 December.
In the negotiations held so far, good progress was achieved on the chapter on exceptions and
limitations, and on the chapter of out of commerce works. The remuneration chapter has been
discussed in quite some detail, and exploratory talks were held on the controversial provisions of
Article 11 and Article 13.
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The 5th trilogue is scheduled for 13 December 2018. In preparation for that 5th trilogue, which is
intended to be the final trilogue, the Presidency seeks a partial update of the negotiating mandate as
suggested in part II of this note.
II. PRESIDENCY SUGGESTIONS ON SPECIFIC ISSUES
(a) Exceptions and limitations
In the chapter on exceptions and limitations, Article 3a (mandatory or optional nature) is one open
issue. The decisions on the question will be left to the final overall compromise.
The only two further open provisions in this chapter are the EP provisions on public domain
(Article 5(1a)), and on "exception hopping" (Article 6(1) EP text).
The Presidency will continue to oppose these provisions.
(i) Public domain Article 5(1a), row 151
However, given the importance of public domain for the EP, the Presidency asks Member States for
flexibility for negotiating a text along the following lines (text provided by the Services of the
Commission as technical assistance to both co-legislators):
"
Article 5(1a): Member States shall provide that, when the term of protection of a work
of visual art has expired, any material resulting from an act of reproduction of that work
shall not be subject to copyright or related rights, unless the material resulting from that
act of reproduction is original in the sense that it is the author's own intellectual
creation.
Recital (new) The expiry of the term of protection of a work entails the entry of that
work into the public domain and the expiry of the rights that Union copyright law
provides to that work. In the field of visual arts, the circulation of faithful reproductions
of works in the public domain contributes to the access to and promotion of culture (or
access to cultural heritage). In the digital environment, the protection of these
reproductions through copyright or related rights is inconsistent with the expiry of the
copyright protection of works. In addition, differences between the national copyright
laws governing the protection of these reproductions give rise to legal uncertainty and
affect the cross-border dissemination of works of visual arts in the public domain.
Therefore, it should be clarified that certain reproductions of works of visual arts in the
public domain should not be protected by copyright or related rights. This should not
prevent cultural heritage institutions from selling reproductions, such as postcards."
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(ii) "Exception hopping" (Article 6(1) EP text), row 154
As regards "exception hopping" the Presidency suggests working in the direction of a clarification
in the recitals along the lines of the jurisprudence.
(b) Out of commerce works and Extended collective licencing
In the out of commerce chapter, the only issues still open, are the "fall back exception"
(Article 7(1a) and related provisions), and Article 9a (Extended collective licencing). On these two
matters, the Presidency will continue negotiations on the basis of the feedback given by Coreper on
23 November 2018.
(c) Confirmation of provisionally agreed parts of the text
With a view to avoiding overloading Coreper at a later point, the Presidency invites Coreper to
confirm those parts of the text on which compromises have already been provisionally agreed, see
the rows indicated in "GREEN" in the fourth column of the table set out in the ANNEX to this note.
III. CONCLUSION
The Permanent Representatives' Committee is thus invited to
• approve the Presidency approach on
(i) Public domain, and
(ii) exception hopping,
and
• confirm the provisionally agreed GREEN parts of the 4-column table set out in the Annex.
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ANNEX I
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
Cell in green: The text can be deemed as already agreed
Cell in yellow: The issue needs further discussion at technical level
Cell in red: The issue needs further discussion in depth at the trilogue meetings
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.
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EP TEXT
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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)
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,
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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,
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
1
OJ C , , p. .
2
OJ C , , p. .
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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
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
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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
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
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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
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
3
COM(2015) 626 final.
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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
the European Parliament and of
European Parliament and of the
the European Parliament and of
the Council4, Directive
Council4, Directive
2000/31/EC
the Council44, 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
Council6, Directive 2006/115/EC
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).
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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 Council7, 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 Council8,
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
Council9 and Directive
European Parliament and of the
2014/26/EU of the European
Council10 .
Parliament and of the Council10.
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
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).
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).
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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
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
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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.
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.
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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
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
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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
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
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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
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
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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
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)
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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-
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
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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
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
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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
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
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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
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
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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
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
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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
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
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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.
24.
(11b) Research organisations
and cultural heritage
institutions, including the
persons attached thereto,
should be covered by the text
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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.
25.
(11c) Research organisations
and cultural heritage
institutions may in certain
cases, for example for
subsequent verification of
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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
retaining the copies in a safe
manner and preventing
unauthorised uses. Uses for the
purpose of scientific research
other than text and data
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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
exception.
exception.
validation or user
authentication. These measures
should not exceed what is
necessary to pursue the objective
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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
the exception the harm should be
minimal.
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28.
(13a) In addition to their
(13a) In
addition
to
their
significance in the context of
significance in the context of
scientific research, text and
scientific research, text and data
data mining techniques are
mining techniques are widely
widely used both by private and used both by private and public
public entities to analyse large
entities to analyse large amounts
amounts of data in different
of data in different areas of life
areas of life and for various
and
for
various
purposes,
purposes, including for
including
for
government
government services, complex
services,
complex
business
business decisions and the
decisions and the development of
development of new
new applications or technologies.
applications or technologies.
Rightholders should remain able
Rightholders should remain
to license the uses of their works
able to license the uses of their
and other subject-matter falling
works and other subject-matter outside the scope of the
falling outside the scope of the
mandatory exception provided for
mandatory exception provided
in this Directive and the existing
for in this Directive and the
exceptions
and
limitations
existing exceptions and
provided
for
in
Directive
limitations provided for in
2001/29/EC. At the same time,
Directive 2001/29/EC. At the
consideration should be given to
same time, consideration should the fact that users of text and data
be given to the fact that users of mining techniques may be faced
text and data mining techniques with legal uncertainty as to
may be faced with legal
whether temporaryreproductions
uncertainty as to whether
and extractions which are a part
temporary reproductions and
of the process of made for the
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extractions which are a part of
purposes of text and data mining
the process of text and data
may be carried out on publicly
mining may be carried out on
available and lawfully accessed
publicly available and lawfully
works and other subject-matter, in
accessed works and other
particular when the reproductions
subject-matter, in particular
or extractions made for the
when the reproductions or
purposes of the technical process
extractions made for the
may not fulfil all the conditions of
purposes of the technical
the
existing
exception
for
process may not fulfil all the
temporary acts of reproduction in
conditions of the existing
Article
5(1)
of
Directive
exception for temporary acts of 2001/29/EC.
reproduction in Article 5(1) of
Directive 2001/29/EC. In order
In order to provide for more legal
to provide for more legal
certainty in such cases and to
certainty in such cases, this
encourage innovation also in the
Directive should enable the
private sector, this Directive
Member States to provide
should [enable the Member States
under certain conditions for an to]
provide
under
certain
exception or limitation for
conditions for an exception or
temporary reproductions and
limitation
for
extractions of works and other
temporaryreproductions
and
subject-matter, insofar as these extractions of works and other
form a part of the text and data subject-matter, insofar as these
mining process and the copies
form a part of the for the purposes
made are not kept beyond that
of text and data mining process
process. This optional exception and allow the copies made are not
or limitation should only apply
to be kept beyond that process as
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when the work or other
long as necessary for the text and
subject-matter is accessed
data mining purposes. This
lawfully by the beneficiary,
optional exception or limitation
including when it has been
should only apply when the work
made available to the public
or
other
subject-matter
is
online, and insofar as the
accessed
lawfully
by
the
rightholders have not reserved
beneficiary, including when it has
the right to make reproductions been made available to the public
and extractions for text and
online, and insofar as the
data mining, for example by
rightholders have not reserved the
agreement, unilateral
right
s to make reproductions and
declaration, including through
extractions for text and data
the use of machine readable
mining
for
example
by
metadata or by the use of
agreement, unilateral declaration,
technical means. Rightholders
including through the use of
should be able to apply
machine readable metadata or by
measures to ensure that their
the use of technical means.
in an
reservations in this regard are
appropriate manner. In the
respected. This optional
case of content that has been
exception or limitation should
made publicly available online,
leave intact the mandatory
it should only be considered
exception for text and data
appropriate to reserve the
mining for research purposes
rights by the use of machine
laid down in this Directive.
readable metadata. In other
cases, it may be appropriate to
reserve the rights by other
means, such as this may be
expressed
by
contractual
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agreements
or
unilateral
declaration, as appropriate.
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, as well as
the
existing
exception
for
temporary acts of reproduction in
Article
5(1)
of
Directive
2001/29/EC.
[wording to be adapted once
decided whether Article 3a is
optional or mandatory]
29.
(13a) To encourage innovation
also in the private sector,
Member States should be able to
provide for an exception going
further than the mandatory
exception, provided that the use
of works and other subject
matter referred to therein has
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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
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
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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
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
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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.
32.
(16) The exception or limitation
(16) The exception or limitation
(16) The exception or limitation
GREEN
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should cover digital uses of works should cover digital uses of works
for the sole purpose of
(16) The exception or limitation
and other subject-matter such as
and other subject-matter such as
illustration for teaching
for the sole purpose of
the use of parts or extracts of
the use of parts or extracts of
provided for in this Directive
illustration for teaching
works to support, enrich or
works to support, enrich or
should cover
be understood as
provided for in this Directive
complement the teaching,
complement the teaching,
covering digital uses of works
should cover
be understood as
including the related learning
including the related learning
and other subject-matter such as
covering digital uses of works
activities. The use of the works or activities.
The exception or
the use of parts or extracts of
and other subject-matter such as
other subject-matter under the
limitation of use should be
works to support, enrich or
the use of parts or extracts of
exception or limitation should be
granted as long as the work or
complement the teaching,
works to support, enrich or
only in the context of teaching
other subject-matter used
including the related learning
complement the teaching,
and learning activities carried out
indicates the source, including
activities.
including the related learning
under the responsibility of
the authors’ name, unless that
activities.
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
In most cases, the concept of
activities. The exception or
limitation should be only in the
imply uses of parts or extracts
illustration would therefore
limitation should cover both uses
context of teaching and learning
of works only, which should not imply uses of parts or extracts
through digital means in the
activities carried out under the
substitute the purchase of
of works only, which should not
classroom and online uses
responsibility of educational
materials primarily intended
substitute the purchase of
through the educational
establishments, including during
for educational markets. When
materials primarily intended
establishment's secure electronic
examinations, and be limited to
implementing the exception or
for educational markets. When
network, the access to which
what is necessary for the purpose
limitation, Member States
implementing the exception or
should be protected, notably by
of such activities. The exception
should remain free to specify,
limitation, Member States
authentication procedures. The
or limitation should cover both
for the different categories of
should remain free to specify,
exception or limitation should be
uses through digital means in the
works or other subject-matter
for the different categories of
understood as covering the
classroom
where the teaching
and in a balanced manner, the
works or other subject-matter
specific accessibility needs of
activity is physically provided,
proportion of a work or other
and in a balanced manner, the
subject-matter that may be
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persons with a disability in the
including where it takes place
used for the sole purpose of
proportion of a work or other
context of illustration for
outside the premises of the
illustration for teaching. The
subject-matter that may be
teaching.
educational establishment, for
Uses allowed under the
used for the sole purpose of
example in libraries or cultural
exception or limitation should be
illustration for teaching. The
heritage institutions, as long as
understood to cover the specific
Uses allowed under the
the use is made under the
accessibility needs of persons
exception or limitation should be
responsibility of the educational
with a disability in the context of
understood to cover the specific
establishment, and online uses
illustration for teaching.
accessibility needs of persons
through the educational
with a disability in the context of
establishment's secure electronic
*[The second and third phrase of illustration for teaching.
network
environment, the access
recital (16) of the COM proposal
to which should be protected,
were moved to new recital (16a)
*[The second and third phrase of
notably by authentication
Council's text - see row 33]
recital (16) of the COM proposal
procedures. The exception or
were moved to new recital (16a)
limitation should be understood
Council's text - see row 33]
as covering the specific
accessibility needs of persons
[provisionally agreed at technical
with a disability in the context of
meeting tbc at trilogue]
illustration for teaching.
33.
(16a) The use of the works or
GREEN
other subject-matter under the
exception or limitation should be
(16a)
The use of the works
only in the context of teaching
or other subject-matter under the
and learning activities carried out exception or limitation should be
under the responsibility of
only in the context of teaching
educational establishments,
and learning activities carried out
including during examinations
or under the responsibility of
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teaching activities taking place
educational establishments,
outside the premises of
including during examinations
or
educational establishments, for
teaching activities taking place
example in a museum, library
outside the premises of
or another cultural heritage
educational establishments, for
institution, and be limited to
example in a museum, library
what is necessary for the purpose
or another cultural heritage
of such activities. The exception
institution, and be limited to
or limitation should cover both
what is necessary for the purpose
uses through digital means
of
of such activities. The exception
works and other subject matter or limitation should cover both
made in the classroom and online uses through digital means
of
uses
or in other venues through works and other subject matter
digital means,
for example
made in the classroom and online
electronic whiteboards or
uses
or in other venues through
digital devices which may be
digital means,
for example
connected to the Internet, as
electronic whiteboards or
well as uses made at a distance
digital devices which may be
through the educational
connected to the Internet, as
establishment's secure electronic
well as uses made at a distance
networks,
such as online courses through the educational
or access to teaching material
establishment's secure electronic
complementing a given course.
networks
environments,
such as
Secure electronic networks
online courses or access to
should be understood as digital
teaching material
teaching and learning
complementing a given course.
environments the access to
Secure electronic networks
which should be protected
is
environments should be
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limited to the educational
understood as digital teaching
establishment's teaching staff
and learning environments the
and to the pupils or students
access to which should be
enrolled in a study programme, protected
is limited to the
notably through appropriate
educational establishment's
authentication procedures,
teaching staff and to the pupils
including password based
or students enrolled in a study
authentication.
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]
[provisionally agreed at Trilogue
26/11/2018]
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
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programme.
35.
(17) Different arrangements,
(17) Different arrangements,
(17) Different arrangements,
GREEN
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
(17) Different
arrangements,
Directive 2001/29/EC or on
Directive 2001/29/EC or on
Directive 2001/29/EC or on
based on the implementation of
licensing agreements covering
licensing agreements covering
licensing agreements covering
the exception provided for in
further uses, are in place in a
further uses, are in place in a
further uses, are in place in a
Directive 2001/29/EC or on
number of Member States in
number of Member States in
number of Member States in
licensing agreements covering
order to facilitate educational uses order to facilitate educational uses order to facilitate educational
further uses, are in place in a
of works and other subject-matter. of works and other subject-matter. uses of works and other subject-
number of Member States in
Such arrangements have usually
Such arrangements have usually
matter. Such arrangements have
order to facilitate educational uses
been developed taking account of been developed taking account of usually been developed taking
of works and other subject-
the needs of educational
the needs of educational
account of the needs of
matter. Such arrangements have
establishments and different
establishments and different
educational establishments and
usually been developed taking
levels of education. Whereas it is
levels of education. Whereas it is
different levels of education.
account
of
the
needs
of
essential to harmonise the scope
essential to harmonise the scope
Whereas it is essential to
educational establishments and
of the new mandatory exception
of the new mandatory exception
harmonise the scope of the new
different levels of education.
or limitation in relation to digital
or limitation in relation to digital
mandatory exception or limitation Whereas it is essential to
uses and cross-border teaching
uses and cross-border teaching
in relation to digital uses and
harmonise the scope of the new
activities, the modalities of
activities, the modalities of
cross-border teaching activities,
mandatory exception or limitation
implementation may differ from a implementation may differ from a the modalities of implementation in relation to digital uses and
Member State to another, to the
Member State to another, to the
may differ from a Member State
cross-border teaching activities,
extent they do not hamper the
extent they do not hamper the
to another, to the extent they do
the modalities of implementation
effective application of the
effective application of the
not hamper the effective
may differ from a Member State
exception or limitation or cross-
exception or limitation or cross-
application of the exception or
to another, to the extent they do
border uses. This should allow
border uses. This should allow
limitation or cross-border uses.
not
hamper
the
effective
Member States to build on the
Member States to build on the
Member States should for
application of the exception or
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existing arrangements concluded
existing arrangements concluded
example remain free to require limitation or cross-border uses.
at national level. In particular,
at national level. In particular,
that the use of works and other This should allow Member States
Member States could decide to
Member States could decide to
subject matter should respect
to
build
on
the
existing
subject the application of the
subject the application of the
moral rights of authors and
arrangements
concluded
at
exception or limitation, fully or
exception or limitation, fully or
performers. This should allow
national level. In particular,
partially, to the availability of
partially, to the availability of
Member States to build on the
Member States could decide to
adequate licences, covering at
adequate licences, covering.
Such existing arrangements concluded
subject the application of the
least the same uses as those
licences can take the form of
at national level. In particular,
exception or limitation, fully or
allowed under the exception. This
collective licensing agreements,
Member States could decide to
partially, to the availability of
mechanism would, for example,
extended collective licensing
subject the application of the
adequate licences covering at
allow giving precedence to
agreements and licences that are exception or limitation, fully or
least the same uses as those
licences for materials which are
negotiated collectively such as
partially, to the availability of
allowed under the exception.
primarily intended for the
“blanket licences”, in order to
adequate licences, covering at
Member States should ensure
educational market. In order to
avoid educational establishments least the same uses as those
that where licenses cover only
avoid that such mechanism results
having to negotiate individually
allowed under the exception.
partially the uses allowed under
in legal uncertainty or
with rightholders. Such licenses
This
Member States could
the exception, all the other uses
administrative burden for
should be affordable and cover at
notably use this mechanism
remain subject to the exception.
educational establishments,
least the same uses as those
would, for example, allow
Member States could for
Member States adopting this
allowed under the exception. This giving
to give precedence to
example use this mechanism
to
approach should take concrete
mechanism would, for example,
licences for materials which are
give precedence to licences for
measures to ensure that licensing
allow giving precedence to
primarily intended for the
materials which are primarily
schemes allowing digital uses of
licences for materials which are
educational market
or for sheet
intended for the educational
works or other subject-matter for
primarily intended for the
music. In order to avoid that such market
or for sheet music.
the purpose of illustration for
educational market
, or for
mechanism results in legal
teaching are easily available and
teaching in educational
uncertainty or administrative
In order to avoid that
the
that educational establishments
establishments or sheet music. In burden for educational
possibility
to
subject
the
are aware of the existence of such order to avoid that such
establishments, Member States
application of the exception to
licensing schemes.
mechanism results in legal
adopting this approach should
the availability of licences
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uncertainty or administrative
take concrete measures to ensure
results in legal uncertainty or
burden for educational
that
rightholders make the
administrative
burden
for
establishments, Member States
licensing schemes allowing
educational
establishments,
adopting this approach should
digital uses of works or other
Member States adopting this
take concrete measures to ensure
subject-matter for the purpose of
approach should take concrete
that
such licensing schemes
illustration for teaching are easily measures to ensure that
right
allowing digital uses of works or
available and that educational
holders make the licensing
other subject-matter for the
establishments are aware of the
schemes allowing digital uses of
purpose of illustration for
existence of such licensing
works or other subject-matter for
teaching are easily available and
schemes.
Such measures may
the purpose of illustration for
that educational establishments
include the development of
teaching are easily available and
are aware of the existence of such
licensing schemes tailored to
that educational establishments
licensing schemes.
Member
the needs of educational
are aware of the existence of such
States should be able to provide
establishments and the
licensing
schemes.
Such
for systems to ensure that there
development of information
licensing schemes measures
is fair compensation for
tools aimed at ensuring the
may include the development of
rightholders for uses under those visibility of the existing
licensing schemes tailored to
exceptions or limitations.
licensing schemes.
should meet the needs of
Member States should be
educational
establishments.
encouraged to use systems that
and
the
development
of
do not create an administrative
Information tools aiming at
burden, such as systems that
ensuring the visibility of the
provide for one-off payments.
existing licensing schemes could
also be developed.
[See Council’s recital (17a) - row
36]
Such
schemes
could,
for
example, be based on collective
licensing
or
on
extended
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collective licensing in order to
avoid
educational
establishments
having
to
negotiate
individually
with
rightholders. In order to
guarantee
legal
certainty,
Member States should 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.
[provisionally agreed at Trilogue
26/11/2018]
36.
(17a) Member States should
GREEN
remain free to provide that
rightholders receive fair
(17a)Member
States
should
compensation for the digital
remain free to provide that
uses of their works or other
rightholders
receive
fair
subject-matter under the
compensation for the digital uses
exception or limitation for
of their works or other subject-
illustration for teaching
matter under the exception or
limitation for illustration for
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provided for in this Directive.
teaching provided for in this
For the purposes of
Directive. For the purposes of
determining the possible level
determining the possible level of
of fair compensation, due
fair compensation, due account
account should be taken, inter
should be taken, inter alia, of
alia, of Member States'
Member
States'
educational
educational objectives and of
objectives and of the harm to
the harm to rightholders.
rightholders.
Member
States
deciding to provide for fair
compensation should encourage
the use of systems, which do not
create administrative burden for
educational establishments.
[provisionally agreed at Trilogue
26/11/2018]
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
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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
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
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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
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
heritage institutions to reproduce
heritage institutions to reproduce
cultural heritage institutions to
works and other subject-matter
works and other subject-matter
reproduce works and other
permanently in their collections
permanently in their collections
subject-matter permanently in
for preservation purposes, for
for preservation purposes, for
their collections for preservation
example to address technological
example to address technological
purposes, for example to address
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obsolescence or the degradation
obsolescence or the degradation
technological obsolescence or the
of original supports. Such an
of original supports
or to insure
degradation of original supports.
exception should allow for the
works. Such an exception should
Such an exception should allow
making of copies by the
allow for the making of copies by for the 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
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
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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
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
(21) For the purposes of this
Directive, works and other
Directive, works and other
Directive, works and other
Directive, works and other
subject-matter should be
subject-matter should be
subject-matter should be
subject-matter should be
considered to be permanently in
considered to be permanently in
considered to be permanently in
considered to be permanently in
the collection of a cultural
the collection of a cultural
the collection of a cultural
the collection of a cultural
heritage institution when copies
heritage institution when copies
heritage institution when copies
heritage institution when copies
are owned or permanently held by
of such works or other subject
are owned or permanently held
of such works or other subject-
the cultural heritage institution,
matter are owned or permanently by the cultural heritage
matter are owned or permanently
for example as a result of a
held by the cultural heritage
institution
such institutions, for
held by such institutions, for
transfer of ownership or licence
institution,
those organisations,
example as a result of a transfer
example as a result of a transfer
agreements.
for example as a result of a
of ownership or licence
of ownership or licence
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transfer of ownership or
, licence
agreements
or permanent
agreements
, legal deposit
agreements,
a legal deposit or a
custody arrangements.
obligations or permanent custody
long-term loan . Works or other
arrangements.
subject matter that cultural
heritage institutions access
temporarily via a third-party
server are not considered as
[tentatively agreed at TM; to be
being permanently in their
confirmed]
collections.
43.
(21a) Technological
developments have given rise to
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
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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-
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
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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,
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
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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
(22) Cultural heritage
institutions should benefit from a
should benefit from a clear
institutions should benefit from a institutions should benefit from a
clear framework for the
framework for the digitisation and clear framework for the
clear framework for the
digitisation and dissemination,
dissemination, including across
digitisation and dissemination,
digitisation and dissemination,
including across borders, of out-
borders, of out-of-commerce
including across borders, of out-
including across borders, of
of-commerce works or other
works or other subject-matter.
of-commerce works or other
works or other subject-matter that
subject-matter. However, the
However, the particular
subject-
matter.
that are
are considered out of commerce
particular characteristics of the
characteristics of the collections
considered out of commerce for for the purposes of this Directive.
collections of out-of-commerce
of out-of-commerce works mean
the purposes of this Directive.
However, the particular
works mean that obtaining the
that obtaining the prior consent of However, the particular
characteristics of the collections
prior consent of the individual
the individual rightholders may
characteristics of the collections
of out-of-commerce works,
rightholders may be very difficult. be very difficult. This can be due, of out-of-commerce works
,
together with the amount of
This can be due, for example, to
for example, to the age of the
together with the amount of
works
and other subject-matter
the age of the works or other
works or other subject-matter,
works involved in mass
involved in mass digitisation
subject-matter, their limited
their limited commercial value or
digitisation projects, mean that
projects, mean that obtaining the
commercial value or the fact that
the fact that they were never
obtaining the prior consent of the prior consent of the individual
they were never intended for
intended for commercial use
or
individual rightholders may be
rightholders may be very
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commercial use. It is therefore
have never been in commerce. It
very difficult. This can be due,
difficult. This can be due, for
necessary to provide for measures is therefore necessary to provide
for example, to the age of the
example, to the age of the works
to facilitate the licensing of rights for measures to facilitate the
works or other subject-matter,
or other subject-matter, their
in out-of-commerce works that
licensing of rights in
use of out-
their limited commercial value or limited commercial value or the
are in the collections of cultural
of-commerce works that are in the the fact that they were never
fact that they were never intended
heritage institutions and thereby
collections of cultural heritage
intended for commercial use. It is for commercial use
or that they
to allow the conclusion of
institutions and thereby to allow
therefore necessary to provide for
have never been exploited
agreements with cross-border
the conclusion of agreements with measures to facilitate the
commercially. It is therefore
effect in the internal market.
cross-border effect in the internal
collective licensing of rights in
necessary to provide for measures
market.
out-of-commerce works that are
to facilitate
certain uses of the
permanently in the collections of collective
licensing of rights in
cultural heritage institutions and
out-of-commerce works
and
thereby to allow the conclusion of
other subject-matter that are
agreements with cross-border
permanently in the collections of
effect in the internal market.
cultural heritage institutions
. , and
thereby to allow the conclusion of
agreements with cross-border
effect in the internal market.
[tentatively agreed at TM; to be
confirmed]
47.
(22a) Several Member States
(22a) Legal mechanisms should
have already adopted extended
therefore exist in all Member
collective licencing regimes,
States allowing for licences
legal mandates or legal
issued by relevant and
presumptions facilitating the
sufficiently representative
licencing of out-of-commerce
collective management
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works. However considering the
organisations to cultural
variety of works and other
heritage institutions, for certain
subject-matter in the collections
uses of out-of-commerce works
of cultural heritage institutions
and other subject matter, to
and the variance between
also apply to the rights of
collective management practices
rightholders that have not
across Member States and
mandated a representative
sectors of cultural production,
collective management
such measures may not provide a
organisation in that regard. It
solution in all cases, for
should be legally possible for
example, because there is no
those licences to cover all
practice of collective
territories of the Union.
management for a certain type of
work or other subject matter. In
(22b) An adapted legal
such particular instances, it is
framework applicable to
therefore necessary to allow
collective licensing may not
cultural heritage institutions to
provide a solution for all the
make out-of-commerce works
cases where cultural heritage
held in their permanent
institutions encounter
collection available online under
difficulties in obtaining all the
an exception to copyright and
necessary authorisations of
related rights. While it is
right holders for the use of out-
essential to harmonise the scope
of-commerce works and other
of the new mandatory exception
subject-matter, for example,
in order to allow cross-border
because there is no practice of
uses of out-of-commerce works,
collective management for a
Member States should
certain type of works or other
nevertheless be allowed to use or
subject-matter or because the
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continue to use extended
relevant collective management
collective licencing
organisation is not broadly
arrangements concluded with
representative for the category
cultural heritage institutions at
of the right holders and of the
national level for categories of
rights concerned. In such
works that are permanently in
particular instances, it should
the collections of cultural
be possible for cultural heritage
heritage institutions The lack of
institutions to make out-of-
agreement on the conditions of
commerce works and other
the licence should not be
subject-matter that are
interpreted as a lack of
permanently in their collection
availability of licensing-based
available online in all territories
solutions. Any uses under this
of the Union under a
exception should be subject to
harmonised exception or
the same opt-out and publicity
limitation to copyright and
requirements as uses authorised
related rights. It is important
by a licensing mechanism. In
that uses under that exception
order to ensure that the
or limitation only take place
exception only applies when
when certain conditions,
certain conditions are fulfilled
notably as regards the
and to provide legal certainty,
availability of licensing
Member States should
solutions, are fulfilled. The lack
determine, in consultation with
of agreement on the conditions
rightholders, collective
of the licence should not be
management organisations and
interpreted as a lack of
cultural heritage organisations,
availability of licensing-based
and at appropriate intervals of
solutions.
time, for which sectors and
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which types of works appropriate
[tentatively agreed at TM; to be
licence-based solutions are not
confirmed]
available, in which case the
exception should apply.
48.
(23) Member States should,
(23) Member States should,
(23) Member States should,
(23) Member States should,
within the framework provided
within the framework provided
within the framework provided
within the framework provided
for in this Directive, have
for in this Directive, have
for in this Directive, have
for in this Directive, have
flexibility in choosing the specific 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
type of
licensing mechanism,
licences for out-of-commerce
licences for out-of-commerce
extended collective licensing or
such as extended collective
works to extend to the rights of
works to extend to the rights of
presumption of representation, licensing or presumption
s of
rightholders that are not
rightholders that are not
allowing for licences for out-of-
representation,
that they put in
represented by the collective
represented by the
relevant
commerce works to extend to the
place for the use of out-of-
management organisation, in
collective management
rights of rightholders that are
have commerce works and other
accordance to their legal
organisation, in accordance to
not represented by the
mandated
subject matter by cultural
traditions, practices or
with their legal traditions,
a representative collective
heritage institutions, in
circumstances. Such mechanisms practices or circumstances. Such
management organisation, in
accordance with their legal
can include extended collective
mechanisms can include extended accordance to
with their legal
traditions, practices or
licensing and presumptions of
collective licensing and
traditions, practices or
circumstances. Member States
representation.
presumptions of representation.
circumstances. Such mechanisms should also have flexibility in
can include extended collective
determining the requirements for
licensing and presumptions of
collective management
representation
Member States
organisations to be sufficiently
should also have flexibility in
representative, as long as this is
determining the requirements
based on a significant number of
for collective management
rightholders in the relevant type
organisations to be sufficiently
of works or other subject-matter
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representative, as long as this is who have given a mandate
based on a significant number
allowing the licensing of the
of rightholders in the relevant
relevant type of use. Member
type of works or other subject-
States should be free to establish
matter who have given a
specific rules applicable to cases
mandate allowing the licensing
where more than one collective
of the relevant type of use.
management organisation is
Member States should be free
representative for the relevant
to establish specific rules
works or other subject matter,
applicable to cases where more
requiring for example joint
than one collective management licences or an agreement between
organisation is representative
the relevant organisations.
for the relevant works or other
subject matter, requiring for
[tentatively agreed at TM; to be
example joint licences or an
confirmed]
agreement between the relevant
organisations.
49.
(24) For the purpose of those
(24) For the purpose of those
(24) For the purpose of those
(24) For the purpose of those
licensing mechanisms, a rigorous licensing mechanisms, a rigorous
licensing mechanisms, a rigorous licensing mechanisms, a rigorous
and well-functioning collective
and well-functioning collective
and well-functioning collective
and well-functioning collective
management system is important. 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 That system includes in particular
rules of good governance,
Member States. That system
rules of good governance,
rules of good governance,
transparency and reporting, as
includes in particular rules of
transparency and reporting, as
transparency and reporting, as
well as the regular, diligent and
good governance, transparency
well as the regular, diligent and
well as the regular, diligent and
accurate distribution and payment and reporting, as well as the
accurate distribution and payment accurate distribution and payment
of amounts due to individual
regular, diligent and accurate
of amounts due to individual
of amounts due to individual
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rightholders, as provided for by
distribution and payment of
rightholders, as provided for by
rightholders, as provided for by
Directive 2014/26/EU. Additional amounts due to individual
Directive 2014/26/EU. Additional Directive 2014/26/EU.
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
(24a) Additional appropriate
should be given the opportunity to appropriate safeguards should be
should be given the opportunity
safeguards should be available for
exclude the application of such
available for all rightholders, who to exclude the application of such all rightholders, who should be
mechanisms to their works or
should be given the opportunity to mechanisms
in relation to
all
given the opportunity to exclude
other subject-matter. Conditions
exclude the application of such
their works or other subject-
the application of
thesuch
attached to those mechanisms
licensing mechanisms
or of such
matter
or to all licences, or in
licensing mechanisms
and the
should not affect their practical
exceptions to their works or other
relation to particular works or
exception or limitation
relevance for cultural heritage
subject-matter. Conditions
other subject-matter or to
introduced by this Directive for
institutions.
attached to those mechanisms
particular licences, at any time
the use of out-of-commerce
should not affect their practical
before or under the duration of works in relation to
all their
relevance for cultural heritage
the licence. Conditions attached
works or other subject-matter or
institutions.
to those mechanisms should not
in relation to all licences
or all
affect their practical relevance for
uses under the exception or
cultural heritage institutions.
It is limitation, or in relation to
important that when a
particular works or other subject-
rightholder excludes the
matter or
in relation to particular
application of such mechanisms licences
or uses under the
to one or more of their works
exception or limitation, at any
or other subject-matter, the
time before or under the duration
informed collective
of the licence
or the uses under
management organisation does
the exception or limitation.
not continue to issue licences
Conditions attached to those
covering the relevant uses and
licensing mechanisms should not
any ongoing uses are
affect their practical relevance for
terminated within a reasonable cultural heritage institutions.
It is
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period. Such exclusion by the
important that when a rightholder
rightholder should not affect
excludes the application of such
their claim to remuneration for mechanisms
or of such exception
the actual use of the work or
or limitation to one or more of
other subject-matter.
their works or other subject-
matter,
the informed collective
management organisation does
not continue to issue licences
covering the relevant uses and
any ongoing uses are terminated
within a reasonable period
, and,
in the case they take place
under a collective licence, that
the informed collective
management organisation does
not continue to issue licences
covering the relevant uses. Such
exclusion by the rightholder
s
should not affect their claim
s to
remuneration for the actual use of
the work or other subject-matter
under the licence.
[tentatively agreed at TM; to be
confirmed]
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50.
(24a) This Directive does not
(24a) This Directive does not
affect the possibility for
affect the possibility for Member
Member States to determine
States to determine the allocation
the allocation of legal
of legal responsibility for the
responsibility for the
compliance of the licensing and
compliance of the licensing and the use of out-of-commerce
the use of out-of-commerce
works with the conditions set out
works with the conditions set
in this Directive and for the
out in this Directive and for the compliance of the parties with the
compliance of the parties with
terms of those licenses.
the terms of those licenses.
[tentatively agreed at TM; to be
confirmed]
51.
(25) Considering the variety of
(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 works and other subject-matter in
the collections of cultural heritage 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
institutions, it is important that
the licensing mechanisms
the licensing mechanisms
the licensing mechanisms
the licensing mechanisms
and the
introduced by this Directive are
introduced by this Directive are
introduced by this Directive are
exception or limitation
available and can be used in
available and can be used in
available and can be used in
introduced by this Directive are
practice for different types of
practice for different types of
practice for different types of
available and can be used in
works and other subject-matter,
works and other subject-matter,
works and other subject-matter,
practice for different types of
including photographs, sound
including photographs, sound
including photographs,
software, works and other subject-matter,
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recordings and audiovisual works. recordings and audiovisual works.
phonograms, sound recordings
including photographs, software,
In order to reflect the specificities In order to reflect the specificities and audiovisual works.
and
phonograms,
audiovisual works
of different categories of works
of different categories of works
unique works of art,
and
unique works of art,
and other subject-matter as
and other subject-matter as
irrespective of whether they
irrespective of whether they have
regards modes of publication and regards modes of publication and
have ever been commercially
ever been commercially available.
distribution and to facilitate the
distribution and to facilitate the
available. Never-in-commerce
Never-in-commerce works may
usability of those mechanisms,
usability of those mechanisms,
works may include posters,
include posters, leaflets, trench
specific requirements and
the solutions on the use of out-
leaflets, trench journals or
journals or amateur audiovisual
procedures may have to be
of-commerce works introduced
amateur audiovisual works, but works, but also unpublished
established by Member States for
by this Directive, specific
also unpublished works or
works or other subject-matter,
the practical application of those
requirements and procedures may
other subject-matter, without
without prejudice to other
licensing mechanisms. It is
have to be established by Member
prejudice to other applicable
applicable legal constraints, such
appropriate that Member States
States for the practical application
legal constraints, such as
as national rules on moral rights.
consult rightholders, users and
of those licensing mechanisms. It
national rules on moral rights.
When a work is available in any
collective management
is appropriate that Member States
When a work is available in any of its different versions, such as
organisations when doing so.
consult rightholders, users
of its different versions, such as subsequent editions of literary
cultural heritage institutions and
subsequent editions of literary
works and alternate cuts of
collective management
works and alternate cuts of
cinematographic works, or in any
organisations when doing so.
cinematographic works, or in
of its different manifestations,
any of its different
such as digital and printed
manifestations, such as digital
formats of the same work, this
and printed formats of the same work or other subject-matter
work, this work or other
should not be considered out of
subject-matter should not be
commerce. Conversely, the
considered out of commerce.
commercial availability of
Conversely, the commercial
adaptations, including other
availability of adaptations,
language versions or audiovisual
including other language
adaptations of a literary work,
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versions or audiovisual
should not preclude the
adaptations of a literary work,
determination of the out-of-
should not preclude the
commerce status of a work in a
determination of the out-of-
given language.
In order to reflect
commerce status of a work in a
the specificities of different types
given language. In order to
of works and other subject-matter
reflect the specificities of
as regards modes of publication
different categories
types of
and distribution and to facilitate
works and other subject-matter as the usability of those
regards modes of publication and mechanisms, specific
distribution and to facilitate the
requirements and procedures may
usability of those mechanisms,
have to be established for the
specific requirements and
practical application of those
procedures may have to be
licensing mechanisms, such as a
established by Member States for time period which needs to have
the practical application of those
been elapsed since the first
licensing mechanisms
, such as a
commercial availability of the
time period which needs to have work. It is appropriate that
been elapsed since the first
Member States consult
commercial availability of the
rightholders,
cultural heritage
work. It is appropriate that
institutionsusers and collective
Member States consult
management organisations when
rightholders, users and collective
doing so.
management organisations when
doing so.
[tentatively agreed at TM; to be
confirmed]
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52.
(25a) When determining
(25a) When determining whether
whether works and other
works and other subject-matter
subject-matter are out of
are out of commerce, a reasonable
commerce, a reasonable effort
effort should be required to assess
should be required to assess
their availability to the public in
their availability to the public
the customary channels of
in the customary channels of
commerce, taking into account
commerce, taking into account
the characteristics of the
the characteristics of the
particular work or set of works.
particular work or set of works. Member States should be free to
Member States should be free
determine the allocation of
to determine the allocation of
responsibilities for making the
responsibilities for making the
reasonable effort. The reasonable
reasonable effort. The
effort should not have to be
reasonable effort should not
repeated over time but it should
have to be repeated over time
also take account of any easily
but it should also take account
accessible evidence of upcoming
of any easily accessible evidence availability of works in the
of upcoming availability of
customary channels of commerce.
works in the customary
A work-by-work assessment
channels of commerce. A work-
should only be required when this
by-work assessment should
is considered reasonable in view
only be required when this is
of the availability of relevant
considered reasonable in view
information, the likelihood of
of the availability of relevant
commercial availability and the
information, the likelihood of
expected transaction cost. The
commercial availability and the verification of availability should
expected transaction cost. The
normally take place in the
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verification of availability
Member State where the cultural
should normally take place in
heritage institution is established,
the Member State where the
unless verification across borders
cultural heritage institution is
is considered reasonable, for
established, unless verification
example when there is easily
across borders is considered
available information that a
reasonable, for example when
literary work was first published
there is easily available
in a given language version in
information that a literary
another Member State. In many
work was first published in a
cases the out-of-commerce status
given language version in
of a set of works could be
another Member State. In
determined through a
many cases the out-of-
proportionate mechanism, such as
commerce status of a set of
sampling. The limited availability
works could be determined
of a work, such as its availability
through a proportionate
in second-hand shops, or the
mechanism, such as sampling.
theoretical possibility to obtain a
The limited availability of a
licence to a work should not be
work, such as its availability in
considered as availability to the
second-hand shops, or the
public in the customary channels
theoretical possibility to obtain
of commerce.
a licence to a work should not
be considered as availability to
[tentatively agreed at TM; to be
the public in the customary
confirmed]
channels of commerce.
53.
(26) For reasons of international (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 comity, the licensing mechanism
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for the digitisation and
and the exception for the
for the digitisation and
and the exception or limitation
dissemination of out-of-
digitisation and dissemination of
dissemination of out-of-
provided for in this Directive
commerce works provided for in
out-of-commerce works provided commerce works provided for in
for the digitisation and
this Directive should not apply to for in this Directive should not
this Directive should not apply to dissemination of out-of-
works or other subject-matter that apply to works or other subject-
works or other subject-matter that commerce works provided for in
are first published or, in the
matter that are first published or,
are first published or, in the
this Directive should not apply to
absence of publication, first
in the absence of publication, first absence of publication, first
sets of out-of-commerce works or
broadcast in a third country or, in broadcast in a third country or, in
broadcast in a third country or, in other subject-matter when there is
the case of cinematographic or
the case of cinematographic or
the case of cinematographic or
available evidence to presume
audiovisual works, to works the
audiovisual works, to works the
audiovisual works, to works the
that they predominantly consist of
producer of which has his
producer of which has his
producer of which has his
works or other subject-matter of
headquarters or habitual residence headquarters or habitual residence headquarters or habitual
third countries, unless the
in a third country. Those
in a third country. Those
residence in a third country.
concerned collective management
mechanisms should also not apply mechanisms should also not apply Those mechanisms should also
organisation is sufficiently
to works or other subject-matter
to works or other subject-matter
not apply to works or other
representative for that third
of third country nationals except
of third country nationals except
subject-matter of third country
country, for example via a
when they are first published or,
when they are first published or,
nationals except when they are
representation agreement. This
in the absence of publication, first in the absence of publication, first first published or, in the absence
assessment can be based on the
broadcast in the territory of a
broadcast in the territory of a
of publication, first broadcast in
evidence available following the
Member State or, in the case of
Member State or, in the case of
the territory of a Member State
reasonable effort to determine the
cinematographic or audiovisual
cinematographic or audiovisual
or, in the case of cinematographic out-of-commerce status of the
works, to works of which the
works, to works of which the
or audiovisual works, to works of works, without the need to search
producer's headquarters or
producer's headquarters or
which the producer's headquarters for further evidence. A work-by-
habitual residence is in a Member habitual residence is in a Member or habitual residence is in a
work assessment of the origin of
State.
State.
Member State
sets of out-of-
the out-of-commerce works
commerce works or other
should only be required insofar as
subject-matter when there is
it is also required for the
available evidence to presume
reasonable effort to determine
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that they predominantly consist their commercial availability.
of works or other subject-
matter of third countries,
[tentatively agreed at TM; to be
unless the concerned collective
confirmed]
management organisation is
sufficiently representative for
that third country, for example
via a representation agreement.
This assessment can be based
on the evidence available
following the reasonable effort
to determine the out-of-
commerce status of the 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
(27) The contracting cultural
projects can entail significant
can entail significant investments
cultural heritage institutions
heritage institutions and
investments by cultural heritage
by cultural heritage institutions,
and collective management
collective management
institutions, any licences granted
any licences granted under the
organisations should remain
organisations should remain free
under the mechanisms provided
mechanisms provided for in this
free to agree on the territorial
to agree on the territorial scope of
for in this Directive should not
Directive should not prevent them
scope of the licence, the licence
the licence,
including the
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prevent them from generating
from generating reasonable
fee and the allowed uses. Uses
possibility to cover all Member
reasonable revenues in order to
revenues in order to cover
covered by such licence should
States, the licence fee and the
cover the costs of the licence and
covering the costs of the licence
not be for profit making
allowed uses. Uses covered by
the costs of digitising and
and the costs of digitising and
purpose, including when copies such licence should not be for
disseminating the works and other disseminating the works and other
are distributed by the cultural
profit making purpose, including
subject-matter covered by the
subject-matter covered by the
heritage institution, such as in
when copies are distributed by the
licence.
licence.
the case of promotional
cultural heritage institution, such
material about an exhibition. At as in the case of promotional
the same time, as the digitisation material about an exhibition. At
projects
of the collections of
the same time, as the digitisation
cultural heritage institutions
of the collections of cultural
can entail significant investments heritage
institutions can entail
by cultural heritage institutions,
significant investments, any
any licences granted under the
licences granted under the
mechanisms provided for in this
mechanisms provided for in this
Directive should not prevent
Directive should not prevent
them
cultural heritage
cultural heritage institutions from
institutions from generating
generating reasonable revenues
reasonable revenues in order to
for the
exclusive purposes of
cover
for the purposes of
covering the costs of the licence
covering the costs of the licence
and the costs of digitising and
and the costs of digitising and
disseminating the works and other
disseminating the works and other subject-matter covered by the
subject-matter covered by the
licence.
licence.
[tentatively agreed at TM; to be
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confirmed]
55.
(28) Information regarding the
(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-
future and ongoing use of out-of-
commerce works and other
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
subject-matter by cultural
institutions on the basis of the
institutions on the basis of the
heritage institutions on the basis
heritage institutions on the basis
licensing mechanisms provided
licensing mechanisms
or of the
of the licensing mechanisms
of the licensing mechanisms
for in this Directive and the
exception provided for in this
provided for in this Directive and provided for in this Directive and
arrangements in place for all
Directive and the arrangements in the arrangements in place for all
the arrangements in place for all
rightholders to exclude the
place for all rightholders to
rightholders to exclude the
rightholders to exclude the
application of licences to their
exclude the application of
application of licences to their
application of licences
or of the
works or other subject-matter
licences
or of the exception to
works or other subject-matter
exception or limitation to their
should be adequately publicised.
their works or other subject-
should be adequately publicised.
works or other subject-matter
This is particularly important
matter should be adequately
both before a licence is granted should be adequately publicised
when uses take place across
publicised. This is particularly
and during the operation of the both before a licence is granted
borders in the internal market. It
important when uses take place
licence as appropriate. This is
and during the operation of the
is therefore appropriate to make
across borders in the internal
particularly important when uses
licence
the use under a licence or
provision for the creation of a
market. It is therefore appropriate take place across borders in the
the exception or limitation, as
single publicly accessible online
to make provision for the creation internal market. It is therefore
appropriate. This is particularly
portal for the Union to make such of a single publicly accessible
appropriate to make provision for important when uses take place
information available to the
online portal for the Union to
the creation of a single publicly
across borders in the internal
public for a reasonable period of
make such information available
accessible online portal for the
market. It is therefore appropriate
time before the cross-border use
to the public for a reasonable
Union to make such information
to make provision for the creation
takes place. Under Regulation
period of time before the cross-
available to the public for a
of a single publicly accessible
(EU) No 386/2012 of the
border use takes place. Under
reasonable period of time before
online portal for the Union to
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European Parliament and of the
Regulation (EU) No 386/2012 of
the cross-border use takes place.
make such information available
Council11, the European Union
the European Parliament and of
This portal should facilitate the to the public for a reasonable
Intellectual Property Office is
the Council11, the European
possibility for rightholders to
period of time before the use
entrusted with certain tasks and
Union Intellectual Property Office
exclude the application of
takes place. This portal should
activities, financed by making use is entrusted with certain tasks and
licences to their works or other facilitate the possibility for
of its own budgetary measures,
activities, financed by making use
subject-matter. Under
rightholders to exclude the
aiming at facilitating and
of its own budgetary measures,
Regulation (EU) No 386/2012 of
application of licences to their
supporting the activities of
aiming at facilitating and
the European Parliament and of
works or other subject-matter.
national authorities, the private
supporting the activities of
the Council11, the European
Under Regulation (EU) No
sector and Union institutions in
national authorities, the private
Union Intellectual Property
386/2012 of the European
the fight against, including the
sector and Union institutions in
Office is entrusted with certain
Parliament and of the Council11,
prevention of, infringement of
the fight against, including the
tasks and activities, financed by
the European Union Intellectual
intellectual property rights. It is
prevention of, infringement of
making use of its own budgetary
Property Office is entrusted with
therefore appropriate to rely on
intellectual property rights. It is
measures
means, aiming at
certain tasks and activities,
that Office to establish and
therefore appropriate to rely on
facilitating and supporting the
financed by making use of its
manage the European portal
that Office to establish and
activities of national authorities,
own budgetary means, aiming at
making such information
manage the European portal
the private sector and Union
facilitating and supporting the
available.
making such information
institutions in the fight against,
activities of national authorities,
available.
including the prevention of,
the private sector and Union
infringement of intellectual
institutions in the fight against,
property rights. It is therefore
including the prevention of,
appropriate to rely on that Office
infringement of intellectual
to establish and manage the
property rights. It is therefore
European portal making such
appropriate to rely on that Office
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).
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information available.
In
to establish and manage the
addition to making the
European portal making such
information available through
information available. In addition
the portal, further appropriate
to making the information
publicity measures may need to available through the portal,
be taken on a case-by-case basis further appropriate publicity
in order to increase the
measures may need to be taken on
awareness of affected
a case-by-case basis in order to
rightholders, for example
increase the awareness of affected
through the use of additional
rightholders, for example through
channels of communication to
the use of additional channels of
reach a wider public. The
communication to reach a wider
necessity, the nature and the
public. The necessity, the nature
geographic scope of the
and the geographic scope of the
additional publicity measures
additional publicity measures
should depend on the
should depend on the
characteristics of the relevant
characteristics of the relevant out-
out-of-commerce works or
of-commerce works or other
other subject-matter, the terms subject-matter, the terms of the
of the licences and the existing
licences
or the type of use under
practices in Member States.
the exception or limitation, and
Publicity measures should be
the existing practices in Member
effective without the need to
States. Publicity measures should
inform each rightholder
be effective without the need to
individually.
inform each rightholder
individually.
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(-28a) In order to ensure that
the licensing mechanisms
established by this Directive for
out-of-commerce works are
relevant and function properly,
that rightholders are
adequately protected, that
licences are properly publicised
and that legal clarity is ensured
with regard to the
representativeness of collective
management organisations and
the categorisation of works,
Member States should foster
sector-specific stakeholder
dialogue.
[tentatively agreed at TM; to be
confirmed]
56.
(28a) The measures provided
(28a) The measures provided for
for in this Directive to facilitate in this Directive to facilitate the
the collective licensing of rights collective licensing of rights in
in out-of-commerce works or
out-of-commerce works or other
other subject-matter that are
subject-matter that are
permanently in the collections
permanently in the collections of
of cultural heritage institutions cultural heritage institutions
should be without prejudice to
should be without prejudice to the
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the use of such works or other
use of such works or other
subject-matter under
subject-matter under exceptions
exceptions or limitations
or limitations provided for in
provided for in Union law or
Union law or under other licences
under other licences with an
with an extended effect, where
extended effect, where such
such licensing is not based on the
licensing is not based on the
out-of-commerce status of the
out-of-commerce status of the
covered works or other subject
covered works or other subject
matter. These measures should
matter. These measures should
also be without prejudice to
also be without prejudice to
national mechanisms for the use
national mechanisms for the
of out of commerce works based
use of out of commerce works
on licences between collective
based on licences between
management organisation and
collective management
users other than cultural heritage
organisation and users other
institutions.
than cultural heritage
institutions.
[tentatively agreed at TM; to be
confirmed]
57.
(28b) Mechanisms of collective
(28b) Mechanisms of collective
licensing with an extended
licensing with an extended effect
effect allow a collective
allow a collective management
management organisation to
organisation to offer licences as a
offer licences as a collective
collective licensing body on
licensing body on behalf of
behalf of rightholders irrespective
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rightholders irrespective of
of whether they have authorised
whether they have authorised
the organisation to do so. Systems
the organisation to do so.
built on such mechanisms, such
Systems built on such
as extended collective licensing,
mechanisms, such as extended
legal mandates or presumptions
collective licensing, legal
of representation, are a well-
mandates or presumptions of
established practice in several
representation, are a well-
Member States and may be used
established practice in several
in different areas. A functioning
Member States and may be
copyright framework that works
used in different areas. A
for all parties requires the
functioning copyright
availability of these
framework that works for all
proportionate, legal mechanisms
parties requires the availability for the licensing of works.
of these proportionate, legal
Member States should therefore
mechanisms for the licensing of be able to rely on solutions,
works. Member States should
allowing relevant licensing
therefore be able to rely on
organisations, which are owned
solutions, allowing relevant
or controlled by their rightholder
licensing organisations, which
members (or entities representing
are owned or controlled by
rightholders) or organised on a
their rightholder members (or
not for profit basis, to offer
entities representing
licences covering potentially
rightholders) or organised on a large volumes of works or other
not for profit basis, to offer
subject-matter for certain types of
licences covering potentially
use, and distribute the revenue
large volumes of works or other received to rightholders.
subject-matter for certain types
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of use, and distribute the
[tentatively agreed at TM; to be
revenue received to
confirmed]
rightholders.
58.
(28c) In the case of some uses,
(28c) In the case of some uses,
together with the usually large
together with the usually large
amount of works involved, the
amount of works involved, the
transaction cost of individual
transaction cost of individual
rights clearance with every
rights clearance with every
concerned rightholder is
concerned rightholder is
prohibitively high and without
prohibitively high and without
effective collective licensing
effective collective licensing
mechanisms all the required
mechanisms all the required
transactions in these areas to
transactions in these areas to
enable the use of these works or enable the use of these works or
other subject matter are
other subject matter are unlikely
unlikely to take place. Extended to take place. Extended collective
collective licensing and similar
licensing and similar mechanisms
mechanisms have made it
have made it possible to conclude
possible to conclude agreements agreements in areas affected by
in areas affected by this market this market failure where
failure where traditional
traditional collective licensing
collective licensing does not
does not provide an exhaustive
provide an exhaustive solution
solution for covering all works
for covering all works and other and other subject-matter to be
subject-matter to be used.
used. These mechanisms serve as
These mechanisms serve as a
a complement to collective
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complement to collective
management based on individual
management based on
mandates, by providing full legal
individual mandates, by
certainty to users. At the same
providing full legal certainty to
time, they provide a further
users. At the same time, they
opportunity to right holders to
provide a further opportunity
benefit from the legitimate use of
to right holders to benefit from
their works.
the legitimate use of their
works.
[tentatively agreed at TM; to be
confirmed]
59.
(28d) Given the increasing
(28d) Given the increasing
importance of the ability to
importance of the ability to offer
offer flexible licensing solutions flexible licensing solutions in the
in the digital age, and the
digital age, and the increasing use
increasing use of such schemes
of such schemes in Member
in Member States, it is
States, it is beneficial to further
beneficial to further clarify in
clarify in Union law the status of
Union law the status of
licensing mechanisms allowing
licensing mechanisms allowing
collective management
collective management
organisations to conclude
organisations to conclude
licences, on a voluntary basis,
licences, on a voluntary basis,
irrespective of whether all
irrespective of whether all
rightholders have authorised the
rightholders have authorised
organisation to do so. Member
the organisation to do so.
States should have the ability to
Member States should have the maintain and introduce such
ability to maintain and
schemes in accordance with their
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introduce such schemes in
legal traditions, practices or
accordance with their legal
circumstances, subject to the
traditions, practices or
safeguards provided for in this
circumstances, subject to the
Directive and in full respect of
safeguards provided for in this
Union law and their international
Directive and in full respect of
obligations related to copyright.
Union law and their
These schemes would only have
international obligations
effect in the territory of the
related to copyright. These
Member State concerned, unless
schemes would only have effect otherwise provided for in Union
in the territory of the Member
law. Member States should have
State concerned, unless
flexibility in choosing the specific
otherwise provided for in Union type of mechanism allowing
law. Member States should
licences for works or other
have flexibility in choosing the
subject-matter to extend to the
specific type of mechanism
rights of rightholders that have
allowing licences for works or
not authorised the organisation
other subject-matter to extend
that concludes the agreement, as
to the rights of rightholders
long as it guarantees sufficient
that have not authorised the
protection of the non-member
organisation that concludes the rightholders. Such mechanisms
agreement, as long as it
may include extended collective
guarantees sufficient protection licensing, legal mandate and
of the non-member
presumptions of representation.
rightholders. Such mechanisms The provisions of this Directive
may include extended collective concerning collective licensing
licensing, legal mandate and
should not affect existing
presumptions of representation. possibilities of Member States to
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The provisions of this Directive apply mandatory collective
concerning collective licensing
management or other collective
should not affect existing
licensing mechanisms with an
possibilities of Member States
extended effect, such as the one
to apply mandatory collective
included in Article 3 of Directive
management or other collective 93/83/EEC.
licensing mechanisms with an
extended effect, such as the one included in Article 3 of
Directive 93/83/EEC.
[tentatively agreed at TM; to be
confirmed]
60.
(28e) It is important that such
(28e) It is important that such
mechanisms are only applied in mechanisms are only applied in
well-defined areas of uses,
well-defined areas of uses, where
where obtaining authorisations obtaining authorisations from
from rightholders on an
rightholders on an individual
individual basis is typically
basis is typically onerous and
onerous and impractical to a
impractical to a degree that makes
degree that makes the required the required licensing transaction,
licensing transaction, i.e. a
i.e. a licence that covers all the
licence that covers all the
involved rightholders unlikely to
involved rightholders unlikely
occur due to the nature of the use
to occur due to the nature of
or of the types of works
the use or of the types of works concerned. It is equally important
concerned. It is equally
that the licensed use neither
important that the licensed use
affects adversely the economic
neither affects adversely the
value of the relevant rights nor
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economic value of the relevant
deprives rightholders of
rights nor deprives rightholders significant commercial benefits.
of significant commercial
Moreover, Member States should
benefits. Moreover, Member
ensure that appropriate safeguards
States should ensure that
are in place to protect the
appropriate safeguards are in
legitimate interests of
place to protect the legitimate
rightholders that are not
interests of rightholders that
represented by the organisation
are not represented by the
offering the licence.
organisation offering the
licence.
[tentatively agreed at TM; to be
confirmed]
61.
(28f) Specifically, to justify the
(28f) Specifically, to justify the
extended effect of the
extended effect of the
mechanisms, the organisation
mechanisms, the organisation
should be, on the basis of
should be, on the basis of
authorisations from
authorisations from rightholders,
rightholders, sufficiently
sufficiently representative of the
representative of the types of
types of works or other subject-
works or other subject-matter
matter and of the rights which are
and of the rights which are the
the subject of the licence. To
subject of the licence. To ensure ensure legal certainty and
legal certainty and confidence
confidence in the mechanisms
in the mechanisms Member
Member States may determine the
States may determine the
allocation of legal responsibility
allocation of legal responsibility for uses authorised by the licence
for uses authorised by the
agreement. Equal treatment
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licence agreement. Equal
should be guaranteed to all
treatment should be guaranteed rightholders whose works are
to all rightholders whose works exploited under the licence as
are exploited under the licence
regards, notably, access to
as regards, notably, access to
information on the licensing and
information on the licensing
the distribution of remuneration.
and the distribution of
Publicity measures should be
remuneration. Publicity
effective throughout the duration
measures should be effective
of the licence without the need to
throughout the duration of the
inform each rightholder
licence without the need to
individually. In order to ensure
inform each rightholder
that rightholders can easily retain
individually. In order to ensure control of their works, and
that rightholders can easily
prevent any uses of their works
retain control of their works,
that would be prejudicial to their
and prevent any uses of their
interests, rightholders must be
works that would be prejudicial given an effective opportunity to
to their interests, rightholders
exclude the application of such
must be given an effective
mechanisms to their works or
opportunity to exclude the
other subject-matter for all uses
application of such mechanisms and works or other subject-
to their works or other subject-
matter, or for specific uses and
matter for all uses and works or works or other subject-matter. In
other subject-matter, or for
such cases, any ongoing uses
specific uses and works or other should be terminated within a
subject-matter. In such cases,
reasonable period. Member States
any ongoing uses should be
may also decide that additional
terminated within a reasonable measures are appropriate to
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period. Member States may
protect rightholders.
also decide that additional
measures are appropriate to
[tentatively agreed at TM; to be
protect rightholders.
confirmed]
62.
(28g) Member States should
(28g) Member States should
ensure that the purpose and
ensure that the purpose and scope
scope of any licence granted as
of any licence granted as a result
a result of these mechanisms, as of these mechanisms, as well as
well as the possible users,
the possible users, should always
should always be carefully and
be carefully and clearly defined in
clearly defined in national
national legislation or, if the
legislation or, if the underlying
underlying legislation is a general
legislation is a general
provision, in the licensing
provision, in the licensing
practices applied as a result of
practices applied as a result of
such general provisions, or in the
such general provisions, or in
licences granted. The ability to
the licences granted. The ability operate a licence under these
to operate a licence under these mechanisms should also be
mechanisms should also be
limited to organisations which are
limited to organisations which
either owned or controlled by
are either owned or controlled
their right holder members or
by their right holder members
which operate on a not for profit
or which operate on a not for
basis, regulated by national law
profit basis, regulated by
implementing Directive
national law implementing
2014/26/EU.
Directive 2014/26/EU.
[tentatively agreed at TM; to be
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confirmed]
63.
(28h) Given the different
(28h) Given the different
traditions and experiences with traditions and experiences with
extended collective licensing
extended collective licensing
across Member States and their across Member States and their
applicability to rightholders
applicability to rightholders
irrespective of their nationality irrespective of their nationality or
or their Member State of
their Member State of residence,
residence, it is important to
it is important to ensure
ensure transparency and
transparency and dialogue at
dialogue at Union level about
Union level about the practical
the practical functioning of
functioning of these mechanisms,
these mechanisms, including as including as regards the
regards the effectiveness of
effectiveness of safeguards for
safeguards for rightholders,
rightholders, their usability and
their usability and the potential the potential need to lay down
need to lay down rules to give
rules to give such schemes cross-
such schemes cross-border
border effect within the internal
effect within the internal
market. To ensure transparency,
market. To ensure
information about the use of such
transparency, information
mechanisms under this Directive
about the use of such
should be regularly published by
mechanisms under this
the Commission. Member States
Directive should be regularly
that have introduced such
published by the Commission.
mechanisms should therefore
Member States that have
inform the Commission about
introduced such mechanisms
relevant national legislation and
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should therefore inform the
its application in practice,
Commission about relevant
including scopes and types of
national legislation and its
licensing introduced on the basis
application in practice,
of general legislation, the scale of
including scopes and types of
licensing and the collective
licensing introduced on the
management organisations
basis of general legislation, the
involved. Such information
scale of licensing and the
should be discussed with Member
collective management
States in the contact committee
organisations involved. Such
referred to in Article 12(3) of
information should be
Directive 2001/29/EC. The
discussed with Member States
Commission should publish a
in the contact committee
report by 31 December 2020 on
referred to in Article 12(3) of
the use of such mechanisms in the
Directive 2001/29)
On
/EC.
Union and their impact on
The Commission should
licensing and rightholders.
publish a report by 31
December 2020 on the use of
[tentatively agreed at TM; to be
such mechanisms in the Union
confirmed]
and their impact on licensing
and rightholders.
64.
(28a) In order to ensure that the
[EP proposal covered as recital -
licensing mechanisms
28a in line 55]
established for out-of-commerce
works are relevant and function
[tentatively agreed at TM; to be
properly, that rightholders are
confirmed]
adequately protected under those
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mechanisms, that licences are
properly publicised and that
legal clarity is ensured with
regard to the representativeness
of collective management
organisations and the
categorisation of 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
(29) Video-on-demand services
the potential to play a decisive
the potential to play a decisive
have the potential to play a
have the potential to play a
role in the dissemination of
role in the dissemination of
decisive role in the dissemination decisive role in the dissemination
European works across the
European works across the
of European
audiovisual works
of audiovisual works across the
European Union. However,
European Union. However,
across the European Union.
European Union. However, the
agreements on the online
agreements on the online
However, agreements
the
availability of those works, in
exploitation of such works may
exploitation of such works may
availability of those works, in
particular European works, on
face difficulties related to the
face difficulties related to the
particular European works, on
video-on-demand services
licensing of rights. Such issues
licensing of rights. Such issues
video-on-demand services
remains limited. Agreements on
may, for instance, appear when
may, for instance, appear when
remains limited. Agreements on the online exploitation of such
the holder of the rights for a given the holder of the rights for a given the online exploitation of such
works may be difficult to
territory is not interested in the
territory is not interested in the
works may
be difficult to
conclude due to issues related to
online exploitation of the work or online exploitation of the work or
conclude due to issues face
the licensing of rights. Such
where there are issues linked to
where there are issues linked to
difficulties related to the licensing issues may, for instance, appear
the windows of exploitation.
the windows of exploitation.
of rights. Such issues may,
for
when the holder of the rights for a
instance, appear when the holder
given territory has low economic
of the rights for a given territory
incentive to exploit a work online
is not interested in the
has low
and does not license or holds back
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economic incentive to exploit a
the online rights, which can lead
work online exploitation of the
to the unavailability of
work or where there are issues
audiovisual works on video-on-
and does not license or holds
demand services. Other issues
back the online rights, which
may be linked to the windows of
can lead to the unavailability of exploitation.
audiovisual works on video-on-
demand services. Other issues
[tentatively agreed at TM; to be
may be linked to the windows of
confirmed] exploitation.
66.
(30) To facilitate the licensing of (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
rights in audiovisual works to
video-on-demand platforms, this
video-on-demand platforms, this
video-on-demand
video-on-demand services, this
Directive requires Member States Directive requires Member States platforms
services, this Directive
Directive requires Member States
to set up a negotiation mechanism to
should set up a negotiation
requires Member States to set
to provide for a negotiation
allowing parties willing to
mechanism,
managed by an
up
provide for a negotiation
mechanism
allowing parties
conclude an agreement to rely on
existing or newly established
mechanism allowing parties
willing to conclude an agreement
the assistance of an impartial
national body, allowing parties
willing to conclude an agreement to rely on the assistance of an
body. The body should meet with willing to conclude an agreement to rely on the assistance of an
impartial body or of one or more
the parties and help with the
to rely on the assistance of an
impartial body. The body
or of
mediators. For that purpose,
negotiations by providing
impartial body.
The participation one or more mediators. For that Member States may either create
professional and external advice.
in this negotiation mechanism
purpose, Member States may
a new body or rely on an existing
Against that background, Member
and the subsequent conclusion
either create a new body or rely one that fulfils the conditions
States should decide on the
of agreements should be
on an existing one that fulfils
established by this Directive.
conditions of the functioning of
voluntary. Where a negotiation
the conditions established by
Member States may designate one
the negotiation mechanism,
involves parties from different
this Directive. Member States
or more competent bodies or
including the timing and duration
Member States, those parties
may designate one or more
mediators. The body or the
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of the assistance to negotiations
should agree beforehand on the
competent bodies or mediators. mediators should meet with the
and the bearing of the costs.
competent Member State, should The body or the mediators
parties and help with the
Member States should ensure that
they decide to rely on the
should meet with the parties and
negotiations by providing
administrative and financial
negotiation mechanism. The
help with the negotiations by
professional
, impartial and
burdens remain proportionate to
body should meet with the parties providing professional and
external advice.
Where a
guarantee the efficiency of the
and help with the negotiations by external advice.
The body or the negotiation involves parties
negotiation forum.
providing professional,
impartial mediators could meet with the
from different Member States,
and external advice. Against that
parties to facilitate the start of
those parties should agree
background, Member States
negotiations or in the course of
beforehand on the competent
should decide on the conditions of
the negotiations to facilitate the Member State, should they
the functioning of the negotiation
conclusion of an agreement.
decide to rely on the negotiation
mechanism, including the timing
The use of and the participation mechanism. The body or the
and duration of the assistance to
in the negotiation mechanism
mediators could meet with the
negotiations and the bearing
should remain voluntary and
parties to facilitate the start of
division of the
any costs
arising,
should not affect the parties'
negotiations or in the course of
and the composition of such
contractual freedom. Against
the negotiations to facilitate the
bodies. Member States should
that background, Member States
conclusion of an agreement.
The
ensure that administrative and
should
be free to decide on the
participation in this negotiation
financial burdens remain
conditions of the
concrete
mechanism and the subsequent
proportionate to guarantee the
functioning of the negotiation
conclusion of agreements
efficiency of the negotiation
mechanism, including the timing
should be voluntary and should
forum.
and duration of the assistance to
not affect the parties' contractual
negotiations and the bearing of
freedom. Against that
the costs. Member States should
background, Member States
ensure that administrative and
should be free to decide on the
financial burdens remain
concrete functioning of the
proportionate to guarantee the
negotiation mechanism, including
efficiency of the negotiation
the timing and duration of the
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forum
mechanism.
assistance to negotiations and the
bearing of the costs. Member
States should ensure that
administrative and financial
burdens remain proportionate to
guarantee the efficiency of the
negotiation mechanism.
[tentatively agreed at TM; to be
confirmed]
67.
(30a) The preservation of the
Union’s heritage is of the utmost
importance and should be
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
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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
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
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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
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
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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
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
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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
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
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).
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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
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
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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
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
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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
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
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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,
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.
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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
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
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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
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
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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
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
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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-
should remain free to decide not
sharing system if such a system
to provide publishers with such
was in operation in that Member remuneration. Member States
State before 12 November 2015.
should remain free to determine
The 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
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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
and publishers in
with the equivalent system that
place
accordance with their
was in operation in that Member national systems.
State 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
strategic position to trigger
innovative spill-overs in other
industrial sectors. Furthermore
CCIs are a driving force for
innovation and development of
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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
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
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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
of their works or other subject
matter.
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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
from the liability exemption
categorising it, as well as using
provided for in Article 14 of
targeted promotion on it. The
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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
use, such as cyberlockers, or
right 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
the meaning of this Directive.
not store and give access to
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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
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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).
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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.
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81.
In order to ensure the functioning
Deleted
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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
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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
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be liable for unauthorised acts
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
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unauthorised works or other
subject-matter, act
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
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information on the type of
measures used and the way
they operate, including for
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
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should provide the service
providers with necessary and
relevant data for the
application of the measures to
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
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sharing service providers
obtain authorisations, including
via licensing agreements, for
the use on the service of content
uploaded by the users of the
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.
(38e) The measures taken by
the online content sharing
service providers to prevent the
availability of unauthorised
works or other subject-matter
should be effective but remain
proportionate, in particular
with regard to the size of the
online content sharing service
provider. While this Directive is
expected to foster the
development of effective
technologies on the market, the
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availability of the measures
may differ according to the
type of content for which the
measures are applied. Having
regard to the technological
developments in line with
industry best practices, those
measures should consequently
ensure a level of efficiency
appropriate to the amount and
the type of works or other
subject matter uploaded by the
users of the services. For the
purposes of assessing the
proportionality of measures to
be taken by the online content
sharing service providers, the
state of the art of existing
technologies for the different
types of content as well as the
size of the services should be
taken into account notably
whether they are small and
micro enterprises. Different
measures may be appropriate
and proportionate per type of
content and it is therefore not
excluded that in some cases
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unauthorised content may only
be avoided upon notification of
rightholders. The measures
should be proportionate in
order to avoid imposing
disproportionately complicated
or costly obligations on certain
online content sharing service
providers, taking into account
notably their small size. In
particular, small and micro
enterprises as defined in Title I
of the Annex to Commission
Recommendation 2003/361/EC,
should be expected to be
subject to less burdensome
obligations than larger service
providers. Therefore, taking
into account the state of the art
and the availability of
technologies and their costs, in
specific cases it may not be
proportionate to expect small
and micro enterprises to apply
preventive measures and that
therefore in such cases these
enterprises should only be
expected to expeditiously
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remove specific unauthorised
works and other subject matter
upon notification by
rightholders.
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
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
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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.
87.
(39a) Members States should
(39a) [Renumbered - in ST
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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
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
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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
guidance should also be
the meaning of this Directive.
provided by the Commission on
When defining best practices,
the implementation of the
special account should be taken
measures including as to which
of fundamental rights, the use of measures could be considered
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exceptions and limitations.
to be proportionate for
Special focus should also be
different types of content. For
given to ensuring that the
the purposes of the guidance
burden on SMEs remains
the Commission should consult
appropriate and that automated
relevant stakeholders, including
blocking of 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
receive fair and appropriate
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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.
91.
(40) Certain rightholders such as (40) Certain rightholders such as (40) Certain rightholders such as (40) Certain rightholders such as
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authors and performers need
authors and performers need
authors
Authors and performers
authors
Authors and performers
information to assess the
information to assess the
need information to assess the
need information to assess the
economic value of their rights
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
which are harmonised under
Union law. This is especially the
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
case where such rightholders
grant a licence or a transfer of
grant a licence or a transfer of
natural persons grant a licence
natural persons grant a licence
rights in return for remuneration.
rights in return for remuneration.
or a transfer of rights
for the
or a transfer of rights
for the
As authors and performers tend to As authors and performers tend to
purposes of exploitation in
purposes of exploitation in
be in a weaker contractual
be in a weaker contractual
return for remuneration.
This
return for remuneration.
This
position when they grant licences position when they grant licences
need does not arise when the
need does not arise when the
or transfer their rights, they need
or transfer their rights, they need
contractual counterpart acts as contractual counterpart acts as
information to assess the
information to assess the
end user of the work and does
end of the work and does not
continued economic value of their continued economic value of their
not exploit the work or
exploit the work or
rights, compared to the
rights, compared to the
performance itself, which could performance itself, which could
remuneration received for their
remuneration received for their
among others be the case in
among others be the case in
licence or transfer, but they often
licence or transfer, but they often
some employment contracts.
some employment contracts.
face a lack of transparency.
face a lack of transparency.
Additionally, this need does not Additionally, this need does not
Therefore, the sharing of adequate Therefore, the sharing of adequate
arise when the exploitation has
arise when the exploitation has
information by their contractual
comprehensive and relevant
ceased, or when the author or
ceased, or when the author or
counterparts or their successors in information by their contractual
performer has granted licence
performer has granted licence
title is important for the
counterparts or their successors in
to the general public without
to the general public without
transparency and balance in the
title is important for the
remuneration.
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
[to be discussed further]
authors and performers are
text - see following row 92]
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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
(40a) As authors and performers
tend to be in a weaker contractual tend to be in a weaker contractual
position when they grant licences position when they grant licences
or transfer their rights, they need
or transfer their rights, they need
information to assess the
information to assess the
continued economic value of their continued economic value of their
rights, compared to the
rights, compared to the
remuneration received for their
remuneration received for their
licence or transfer, but they often licence or transfer, but they often
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face a lack of transparency.
face a lack of transparency.
Therefore, the sharing of
Therefore, the sharing of
adequate information by their
adequate
and accurate
contractual counterparts or their
information by their contractual
successors in title is important for counterparts or their successors in
the transparency and balance in
title is important for the
the system that governs the
transparency and balance in the
remuneration of authors and
system that governs the
performers.
The information
remuneration of authors and
should be: timely to allow
performers.
The information
access to recent data; adequate
should be: timely up-to-date to
to include information relevant allow access to recent data;
to the exploitation of the work
adequate to include information
or performance in a manner
relevant to the exploitation of
that is comprehensible to the
the work or performance in a
author or performer; and
manner that is comprehensible
sufficient to assess the economic to the author or performer; and
value of the rights in question.
comprehensive to cover all
As long as exploitation is
sources of revenues relevant to
ongoing, contractual
the case, including, where
counterparts of authors and
applicable, merchandising
performers should provide
revenues sufficient to assess the
information available to them
economic value of the rights in
on all modes of exploitation and question. As long as
on all relevant revenues with a
exploitation is ongoing,
regularity which is appropriate contractual counterparts of
in the relevant sector, but at
authors and performers should
least annually. The processing
provide information available
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of personal data, such as
to them on all modes of
contact details and information exploitation and on all relevant
on remuneration, that are
revenues worldwide with a
necessary to keep authors and
regularity which is appropriate
performers informed on the
in the relevant sector, but at
exploitation of their works and
least annually. The information
performances should be carried should be provided in a manner
out by those who need to
that is comprehensible to the
comply with the transparency
author or performer and it
obligation on the basis of
should allow the effective
Article 6(1)(c) of Regulation
assessment of the economic
(EU) 2016/679 on the protection value of the rights in question.
of natural persons with regard
The transparency obligation
to the processing of personal
should nevertheless apply only
data and the free movement of
where copyright relevant rights
such data (General Data
are concerned. The processing
Protection Regulation).
of personal data, such as
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
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of natural persons with regard
to the processing of personal
data and the free movement of
such data (General Data
Protection Regulation).
[to be discussed further]
93.
(40b) In order to ensure that
(40b) In order to ensure that
exploitation-related
exploitation-related
information is duly provided to information is duly provided to
authors and performers also in
authors and performers also in
cases where the rights have
cases where the rights have
been sublicensed by the first
been sublicensed by the first
contractor to other parties who contractor to other parties who
exploit the rights, this Directive exploit the rights, this Directive
entitles authors and
entitles authors and
performers, in cases where the
performers, in cases where the
contractual partner has
first contractual counterpart
provided the information
partner has provided the
available to them, but the
information available to them,
received information is not
but the received information is
sufficient to assess the economic not sufficient to assess the
value of their rights, to request
economic value of their rights,
additional relevant information to request additional relevant
on the exploitation of the rights. information on the exploitation
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This can be ensured either
of the rights. This can be
directly or through the
ensured either directly from
contractual counterparts of
sub-licensees or through the
authors and performers.
contractual counterparts of
Member States should have the authors and performers.
option, in compliance with
Authors and performers and
Union law, to provide for
their contractual counterparts
further measures through
may agree to keep the shared
national provisions to ensure
information confidential, but
transparency for authors and
authors and performers should
performers.
always have the possibility to use
the shared information for
exercising their rights under in
this Directive. 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.
[to be discussed further]
94.
(41) When implementing
(41) When implementing
(41) When implementing
(41) When implementing
transparency obligations, the
transparency obligations, the
transparency obligations,
transparency obligations,
specificities of different content
specificities of different content
Member States should take into Member States should take into
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sectors and of the rights of the
sectors and of the rights of the
account the specificities of
account the specificities of
authors and performers in each
authors and performers in each
different content sectors and
,
different content sectors and
,
sector should be considered.
sector should be considered.
such as those of the rights of the
such as those of the rights of the
Member States should consult all Member States should consult all
authors and performers in
authors and performers in
relevant stakeholders as that
relevant stakeholders as that
each
music sector should be
each
music sector should be
should help determine sector-
should help determine sector-
considered. Member States
considered. Member States
specific requirements. Collective
specific requirements. Collective
should consult
, the audiovisual
should consult
, the audiovisual
bargaining should be considered
bargaining should be considered
sector and the publishing sector sector and the publishing sector
as an option to reach an
as an option to reach an
and all relevant stakeholders as
and all relevant stakeholders as
agreement between the relevant
agreement between the relevant
that should help determine
be
that should help determine
be
stakeholders regarding
stakeholders regarding
involved when determining
involved when determining
transparency. To enable the
transparency. To enable the
such sector-specific
such sector-specific
adaptation of current reporting
adaptation of current reporting
requirements.
Where relevant,
requirements.
Where relevant,
practices to the transparency
practices to the transparency
the significance of the
the significance of the
obligations, a transitional period
obligations, a transitional period
contribution of authors and
contribution of authors and
should be provided for. The
should be provided for. The
performers to the overall work
performers to the overall work
transparency obligations do not
transparency obligations do not
or performance should also be
or performance should also be
need to apply to agreements
need to apply to agreements
considered. Collective
considered. Collective
concluded with collective
concluded with collective
bargaining should be considered
bargaining should be considered
management organisations as
management organisations as
as an option to reach an
as an option to reach an
those are already subject to
those are already subject to
agreement between the relevant
agreement between the relevant
transparency obligations under
transparency obligations under
stakeholders regarding
stakeholders regarding
Directive 2014/26/EU.
Directive 2014/26/EU.
transparency.
which should
transparency.
which should
ensure authors and performers ensure authors and performers
the same or higher level of
the same or higher level of
transparency as the minimum
transparency as the minimum
requirements provided for in
requirements provided for in
this Directive. To enable the
this Directive. To enable the
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adaptation of current reporting
adaptation of current reporting
practices to the transparency
practices to the transparency
obligations, a transitional period
obligations, a transitional period
should be provided for. The
should be provided for. The
transparency obligations do not
transparency obligations do not
need to apply to agreements
need to apply to agreements
concluded with collective
concluded with collective
management organisations
and
management organisations
and
independent management
independent management
entities or by other entities
entities or by other entities
subject to the national rules
subject to the national rules
implementing Directive
implementing Directive
2014/26/EU as those are already
2014/26/EU as those are already
subject to transparency
subject to transparency
obligations under Directive
obligations under Directive
2014/26/EU.
2014/26/EU. The transparency
obligations do not need to apply
to agreements concluded
between
rightholders and collective
management organisations,
independent management entities
or other entities subject to the
national rules implementing
Directive 2014/26/EU as those
organisations or entities are
already subject to transparency
obligations
under Article 18 of
Directive 2014/26/EU.
Article 18
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of Directive 2014/26/EU applies
to organisations which manage
copyright or related rights on
behalf of more than one
rightholder for the collective
benefit of those rightholders.
This situation differs from the
one of individually negotiated
agreements concluded between
rightholders and their
contractual partners who act in
their own interest and are
subject to the transparency
obligation provided for in this
Directive.
[to be discussed further]
95.
(42) Certain contracts for the
(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 exploitation of rights harmonised
at Union level are of long
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
duration, offering few
possibilities for authors and
possibilities for authors and
possibilities for authors and
possibilities for authors and
performers to renegotiate them
performers to renegotiate them
performers to renegotiate them
performers to renegotiate them
with their contractual counterparts with their contractual counterparts with their contractual
with their contractual
or their successors in title.
or their successors in title.
counterparts or their successors in counterparts or their successors in
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Therefore, without prejudice to
Therefore, without prejudice to
title.
when the economic value
title.
when the economic value
the law applicable to contracts in
the law applicable to contracts in
of the rights turns out to be
of the rights turns out to be
Member States, there should be a Member States, there should be a
significantly higher than
significantly higher than
remuneration adjustment
remuneration adjustment
initially estimated. Therefore,
initially estimated. Therefore,
mechanism for cases where the
mechanism for cases where the
without prejudice to the law
without prejudice to the law
remuneration originally agreed
remuneration originally agreed
applicable to contracts in Member applicable to contracts in Member
under a licence or a transfer of
under a licence or a transfer of
States, there should be a
States, there should be a
rights is disproportionately low
rights is disproportionately low
remuneration adjustment
remuneration adjustment
compared to the relevant revenues compared to the relevant
direct
mechanism
should be provided
mechanism
should be provided
and the benefits derived from the
and indirect revenues and the
for cases where the remuneration for cases where the remuneration
exploitation of the work or the
benefits derived from the
originally agreed under a licence
originally agreed under a licence
fixation of the performance,
exploitation of the work or the
or a transfer of rights is
clearly
or a transfer of rights is
clearly
including in light of the
fixation of the performance,
becomes disproportionately low
becomes disproportionately low
transparency ensured by this
including in light of the
compared to the relevant
compared to the relevant revenues
Directive. The assessment of the
transparency ensured by this
revenues and the benefits derived and the benefits derived from the
situation should take account of
Directive. The assessment of the
from the
subsequent exploitation
subsequent exploitation of the
the specific circumstances of each situation should take account of
of the work or the fixation 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
performance, including in light of
and practices of the different
case
, as well as of the specificities
by the transparency ensured by
by the transparency ensured by
content sectors. Where the parties and practices of the different
this Directive.
contractual
this Directive.
contractual
do not agree on the adjustment of content sectors
as well as of the
counterpart of the author or
counterpart of the author or
the remuneration, the author or
nature and the contribution to
performer. The assessment of
performer. The revenues which
performer should be entitled to
the work of the author or
the situation should take account
should be taken into account for
bring a claim before a court or
performer. Such a contract
of the specific circumstances of
the assessment of the
other competent authority.
adjustment request could also be each case
, including the
disproportion are all revenues
made by the organisation
contribution of the author or
relevant to the case, including,
representing the author or
performer, as well as of the
where applicable, merchandising
performer on his or her behalf,
specificities and
remuneration
revenues. The assessment of the
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unless the request would be
practices of the different content
situation should take account of
detrimental to the interests of the sectors
, and whether the
the specific circumstances of each
author or performer. Where the
contract is based on a collective case
, including the contribution
parties do not agree on the
bargaining agreement. Where
of the author or performer, as
adjustment of the remuneration,
the parties do not agree on the
well as of the specificities and
the author or performer
or a
adjustment of the remuneration,
remuneration practices of the
representative organisation
the author or performer should be different content sectors
, and
appointed by them should
on
entitled to bring a claim before a
whether the contract is based
request by the author or
court or other competent
on a collective bargaining
performer be entitled to bring a
authority.
This mechanism
agreement.
Duly mandated
claim before a court or other
should not apply to contracts
professional defence bodies of
competent authority.
concluded by entities defined in authors and performers should
Article 3(a) and (b) of Directive have the possibility to provide
2014/26/EU or by other entities assistance in requesting the
subject to the national rules
adjustment of the contracts on
implementing Directive
behalf of one or more authors,
2014/26/UE.
also taking into account the
interests of other authors or
performers when relevant. These
organisations should protect the
identity of the represented
authors and performers in the
proceedings for as long as this is
possible. Where the parties do not
agree on the adjustment of the
remuneration, the author or
performer should be entitled to
bring a claim before a court or
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other competent authority.
This
mechanism should not apply to
contracts 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/UE.
[to be discussed further]
96.
(43) Authors and performers are (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
often reluctant to enforce their
rights against their contractual
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. partners before a court or tribunal.
Member States should therefore
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
provide for an alternative dispute
resolution procedure that
resolution procedure that
resolution procedure that
resolution procedure that
addresses claims related to
addresses claims related to
addresses claims
by authors and addresses claims
by authors and
obligations of transparency and
obligations of transparency and
performers or their
performers or their
the contract adjustment
the contract adjustment
representatives on their behalf
representatives on their behalf
mechanism.
mechanism.
Representative
related to obligations of
related to obligations of
organisations of authors and
transparency and the contract
transparency and the contract
performers, including collective
adjustment mechanism.
For that
adjustment mechanism.
For that
management organisations and
purpose, Member States may
purpose, Member States may
trade unions, should be able to
either create a new body or
either create a new body or
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initiate such procedures at the
mechanism or rely on an
mechanism or rely on an
request of authors and
existing one that fulfils the
existing one that fulfils the
performers. Details about who
conditions established by this
conditions established by this
initiated the procedure should
Directive irrespective of
Directive irrespective of
remain undisclosed.
whether these are industry-led
whether these are industry-led
or public, including when
or public, including when
incorporated in the national
incorporated in the national
judiciary system. Member
judiciary system. Member
States should have flexibility in
States should have flexibility in
deciding how the costs of the
deciding how the costs of the
dispute resolution procedure
dispute resolution procedure
should be allocated. This
should be allocated. This
alternative dispute resolution
alternative dispute resolution
procedure should be without
procedure should be without
prejudice to the right of parties prejudice to the right of parties
to assert and defend their rights to assert and defend their rights
by bringing an action before a
by bringing an action before a
court.
court.
Professional defence
bodies of authors and performers
should be able to initiate such
procedures at the request of
authors and performers. Details
about who initiated the procedure should remain
undisclosed.
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[to be discussed further]
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
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
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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
the license or of the transfer
agreement. National law should
regulate the exercise of the right
of revocation in the case of
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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 (43a) The obligations laid down
in Articles 14 and 15 of this
in Articles 14, 15 and 16 of this
Directive should be of a
Directive should be of a
mandatory nature and parties
mandatory nature and parties
should not be able to derogate
should not be able to derogate
from these contractual
from these contractual
provisions, whether included in provisions, whether included in
the contracts between authors,
the contracts between authors,
performers and their
performers and their
contractual counterparts or in
contractual counterparts or in
agreements between those
agreements between those
counterparts and third parties
counterparts and third parties
such as non-disclosure
such as non-disclosure
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agreements. As a consequence,
agreements. As a consequence,
the rules set out in Article 3(4)
the rules set out in Article 3(4)
of the Regulation (EC) No
of the Regulation (EC) No
593/2008 of the European
593/2008 of the European
Parliament and of the Council14 Parliament and of the Council14
should apply to the effect that
should apply to the effect that
where all other elements
where all other elements
relevant to the situation at the
relevant to the situation at the
time of the choice are located in time of the choice are located in
one or more Member States,
one or more Member States, the
the parties’ choice of applicable parties’ choice of applicable law
law other than that of a
other than that of a Member
Member State shall not
State shall not prejudice the
prejudice the application of
application of Articles 14, 15
Articles 14 and 15, as
and 16, as implemented in the
implemented in the Member
Member State of the forum.
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
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
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).
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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
accordance with those rights and
accordance with those rights and
accordance with those rights and
principles.
principles.
principles.
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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 Council15
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
Council16.
Parliament and of the Council16.
Council16
The provisions of the
General Data Protection
Regulation, including the "right
to be forgotten" should be
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”.
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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 documents17,
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
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
17
OJ C 369, 17.12.2011, p. 14.
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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,
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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
Cell in green: The text can be deemed as already agreed
Cell in yellow: The issue needs further discussion at technical level
Cell in red: The issue needs further discussion in depth at the trilogue meetings
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.
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105.
TITLE I
TITLE I
TITLE I
TITLE I
GENERAL PROVISIONS
GENERAL PROVISIONS
GENERAL PROVISIONS
GENERAL PROVISIONS
106.
Art.1,
Article 1
Article 1
Article 1
Article 1
Subject matter and scope
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
GREEN
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
1. This Directive lays down
Union law applicable to
applicable to copyright and
Union law applicable to
rules which aim at further
copyright and related rights
related rights in the
copyright and related rights
harmonising the Union law
in the framework of the
framework of the internal
in the framework of the
applicable to copyright and
internal market, taking into
market, taking into account
internal market, taking into
related rights in the framework
account in particular digital
in particular digital and
account in particular digital
of the internal market, taking
and cross-border uses of
cross-border uses of
and cross-border uses of
into account in particular
protected content. It also
protected content. It also
protected content. It also
digital and cross-border uses
lays down rules on
lays down rules on
lays down rules on
of protected content. It also
exceptions and limitations,
exceptions and limitations,
exceptions and limitations,
lays down rules on exceptions
on the facilitation of licences on the facilitation of licences on the facilitation of licences and limitations, on the
as well as rules aiming at
as well as rules aiming at
as well as rules aiming at
facilitation of licences as well
ensuring a well-functioning
ensuring a well-functioning
ensuring a well-functioning
as rules aiming at ensuring a
marketplace for the
marketplace for the
marketplace for the
well-functioning marketplace
exploitation of works and
exploitation of works and
exploitation of works and
for the exploitation of works
other subject-matter.
other subject-matter.
other subject-matter.
and other subject-matter.
[identical text]
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108.
Art. 1, para 2 2.
Except in the cases
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,
referred to in Article 6
17, this
Directive shall leave intact
Directive shall leave intact
this Directive shall leave
Directive shall leave intact and
and shall in no way affect
and shall in no way affect
intact and shall in no way
shall in no way affect existing
existing rules laid down in
existing rules laid down in
affect existing rules laid
rules laid down in the
the Directives currently in
the Directives currently in
down in the Directives
Directives currently in force in
force in this area, in
force in this area, in
currently in force in this
this area, in particular
particular Directives
particular Directives
area, in particular Directives Directives 96/9/EC,
96/9/EC, 2001/29/EC,
96/9/EC
, 2000/31/EC,
96/9/EC,
2000/31/EC,
2000/31/EC, 2001/29/EC,
2006/115/EC, 2009/24/EC,
2001/29/EC, 2006/115/EC,
2001/29/EC, 2006/115/EC,
2006/115/EC, 2009/24/EC,
2012/28/EU and
2009/24/EC, 2012/28/EU
2009/24/EC, 2012/28/EU
2012/28/EU and 2014/26/EU.
2014/26/EU.
and 2014/26/EU.
and 2014/26/EU.
109.
Art. 2, title
Article 2
Article 2
Article 2
Article 2
Definitions
Definitions
Definitions
Definitions
110.
Art. 2,
For the purposes of this
For the purposes of this
For the purposes of this
GREEN
introductory
Directive, the following
Directive, the following
Directive, the following
part
definitions shall apply:
definitions shall apply:
definitions shall apply:
For the purposes of this
Directive, the following
definitions shall apply:
111.
Art. 2, para
(1) ‘research organisation’ (1) ‘research organisation’
(1) ‘research organisation’
GREEN
1,
means a university, a
means a university
,
means a university, a
introductory
research institute or any
including its libraries, a
research institute or any
(1) ‘research organisation’
part
other organisation the
research institute or any
other organisation
an entity,
means a university,
including
primary goal of which is to
other organisation the
the primary goal of which is
its libraries, a research
conduct scientific research
primary goal of which is to
to conduct scientific
institute or any other
entity the
primary goal of which is to
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or to conduct scientific
conduct scientific research
research or to conduct
conduct scientific research
or
research and provide
or to conduct scientific
scientific research and
to carry out educational
educational services:
research and provide
provide educational services:
activities involving also the
educational services:
involving also the conduct
conduct of scientific research:
of scientific research:
[provisionally agreed at
Trilogue 25/10/2018]
112.
Art. 2, para
(a) on a non-for-profit
(a) on a non-for-profit
(a) on a non-for-profit
GREEN
1, point (a)
basis or by reinvesting all
basis or by reinvesting all
basis or by reinvesting all
the profits in its scientific
the profits in its scientific
the profits in its scientific
(a) on a non-for-profit basis
research; or
research; or
research; or
or by reinvesting all the profits
in its scientific research; or
[provisionally agreed at
Trilogue 25/10/2018]
113.
Art. 2, para
(b) pursuant to a public
(b) pursuant to a public
(b) pursuant to a public
GREEN
1, point (b)
interest mission recognised
interest mission recognised
interest mission recognised
by a Member State;
by a Member State;
by a Member State;
(b) pursuant to a public
interest mission recognised by
a Member State;
[provisionally agreed at
Trilogue 25/10/2018]
114.
Art. 2, para
in such a way that the access in such a way that the access in such a way that the access
GREEN
1, closing
to the results generated by
to the results generated by
to the results generated by
phrase
the scientific research cannot the scientific research cannot the scientific research cannot in such a way that the access to
the results generated by the
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be enjoyed on a preferential
be enjoyed on a preferential
be enjoyed on a preferential
scientific research cannot be
basis by an undertaking
basis by an undertaking
basis by an undertaking
enjoyed on a preferential basis
exercising a decisive
exercising a
significant
exercising a decisive
by an undertaking exercising a
influence upon such
influence upon such
influence upon such
significant decisive
influence
organisation;
organisation;
organisation;
upon such organisation;
[provisionally agreed at
Trilogue 25/10/2018]
115.
Art. 2, para 2 (2) ‘text and data mining’
(2) 'text and data mining'
(2) ‘text and data mining’
GREEN
means any automated
means any automated
means any automated
analytical technique aiming
analytical technique
which
analytical technique aiming
(2) ‘text and data mining’
to analyse text and data in
analyses works and other
to analyse text and data in
means any automated
digital form in order to
subject matter in digital
digital form in order to
analytical technique aiming to
generate information such as form in order to generate
generate information such as analyse text and data
in digital
patterns, trends and
information
, including, but
patterns, trends and
form in order to generate
correlations;
not limited to, patterns,
correlations;
information
, including, but
trends and correlations
.
not limited to, patterns, trends
and correlations;
[provisionally agreed at
Trilogue 25/10/2018]
116.
Art. 2, para 3 (3) ‘cultural heritage
(3) ‘cultural heritage
(3) ‘cultural heritage
GREEN
institution’ means a publicly institution’ means a publicly institution’ means a publicly
accessible library or
accessible library or
accessible library or
(3) ‘cultural heritage
museum, an archive or a film museum, an archive or a film museum, an archive or a film institution’ means a publicly
or audio heritage institution; or audio heritage institution; or audio heritage institution; accessible library or museum,
an archive or a film or audio
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heritage institution;
[provisionally agreed at
Trilogue 25/10/2018]
117.
Art. 2, para 4 (4) ‘press publication’
(4) ‘press publication’
(4) ‘press publication’
means a fixation of a
means a fixation
by
means a fixation of a
collection of literary works
publishers or news agencies collection
composed mainly
of a journalistic nature,
of a collection of literary
of literary works of a
which may also comprise
works of a journalistic
journalistic nature, which
:
other works or subject-
nature, which may also
matter and constitutes an
comprise other works or
[remaining part of this
individual item within a
subject-matter and
pargraph was split up in
periodical or regularly-
constitutes an individual
points (a) to (d) - see
updated publication under a
item within a periodical or
following rows 118-121]
single title, such as a
regularly-updated
newspaper or a general or
publication under a single
special interest
title, such as a newspaper or
magazine, having the
a general or special interest
purpose of providing
magazine, having the
information related to news
purpose of providing
or other topics and published information related to news
in any media under the
or other topics and published
initiative, editorial
in any media under the
responsibility and control of initiative, editorial
a service provider.
responsibility and control of
a service provider.
Periodicals which are
published for scientific or
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academic purposes, such as
scientific journals, shall not
be covered by this
definition;
118.
Art. 2, para
(a) may also
4, 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
(b) constitutes an
4, point (b)
individual item within a
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
(c) has having
the purpose
4, point (c)
of providing
the general
public with information
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related to news or other
topics
; and
[See Article 2(4) of COM
proposal and of EP text (row
117)]
121.
Art. 2, para
(d) is published in any
4, 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)]
122.
Art. 2, para
(4a) ‘out of commerce
4a,
work’ 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;
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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,
(4b) ‘online content
(5) ‘online content
para 4b
sharing service provider’
sharing service provider’
(EP)/para 5
means a provider of an
means a provider of an
(Council)
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
access to the public to
and give the public access
a significant amount of
to a large amount of works
copyright protected works
or other subject-matter
or other protected subject-
uploaded by its users
matter uploaded by its
which it organises and
users, which the service
promotes for profit-
optimises and promotes for
making purposes.
profit making purposes.
Microenterprises and small- Providers of services such
sized enterprises within the
as non-for-profit online
meaning of Title I of the
encyclopaedias, non-for-
Annex to Commission
profit educational and
Recommendation
scientific repositories, non-
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2003/361/EC and services
for-profit open source
acting in a non-commercial software developing
purpose capacity such as
platforms, as well as
online encyclopaedia, and
internet access service
providers of online services
providers, online
where the content is
marketplaces and
uploaded with the
providers of cloud services
authorisation of all right
which allow users,
holders concerned, such as
including businesses for
educational or scientific
their internal purposes, to
repositories, shall not be
upload content for their
considered online content
own use shall not be
sharing service providers
considered online content
within the meaning of this
sharing service providers
Directive. Providers of
within the meaning of this
cloud services for individual Directive;
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;
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126.
Art. 2,
(4c) ‘information society
(6) ‘information society
para 4c
service’ means a service
service’ means a service
(EP)/para 6
within the meaning of point within the meaning of
(Council)
(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 technical
regulations and of rules on
Information Society services
(OJ L 241, 17.9.2015, p. 1).
127.
Art. 2, para
(4d) ‘automated image
4d
referencing service’ means
any online service which
reproduces or makes
available to the public for
indexing and referencing
purposes graphic or art
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works or photographic
works collected by
automated means via a
third-party online service.
128.
TITLE II
TITLE II
TITLE II
TITLE II
MEASURES TO ADAPT
MEASURES TO ADAPT
MEASURES TO ADAPT
MEASURES TO ADAPT
EXCEPTIONS AND
EXCEPTIONS AND
EXCEPTIONS AND
EXCEPTIONS AND
LIMITATIONS TO THE
LIMITATIONS TO THE
LIMITATIONS TO THE
LIMITATIONS TO THE
DIGITAL AND CROSS-
DIGITAL AND CROSS-
DIGITAL AND CROSS-
DIGITAL AND CROSS-
BORDER ENVIRONMENT BORDER ENVIRONMENT BORDER ENVIRONMENT BORDER ENVIRONMENT
129.
Art. 3,
Article 3
Article 3
Article 3
GREEN
Text and data mining
Text and data mining
Text and data mining for the
title
purposes of scientific
Article 3
research
Text and data mining for the
purposes of scientific research
[provisionally agreed at
Trilogue 25/10/2018]
130.
Art. 3, para 1 1.
Member States shall
1. Member States shall
1.
.Member States shall
GREEN
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
1. Member States shall provide
Article 2 of Directive
Article 2 of Directive
Article 2 of Directive
for an exception to the rights
2001/29/EC, Articles 5(a)
2001/29/EC, Articles 5(a)
2001/29/EC, Articles 5(a)
provided for in Article 2 of
and 7(1) of Directive
and 7(1) of Directive
and 7(1) of Directive
Directive 2001/29/EC, Articles
96/9/EC and Article 11(1) of 96/9/EC and Article 11(1) of 96/9/EC and Article 11(1) of 5(a) and 7(1) of Directive
this Directive for
this Directive for
this Directive for
96/9/EC and Article 11(1) of
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reproductions and
reproductions and
reproductions and
this Directive for
extractions made by research extractions made by research extractions made by research reproductions and extractions
organisations in order to
organisations in order to
organisations
and cultural
made by research
carry out text and data
carry out text and data
heritage institutions in
organisations
and cultural
mining of works or other
mining of works or other
order to carry out text and
heritage institutions in order
subject-matter to which they subject-matter to which
they data mining of works or
to carry out text and data
have lawful access for the
have lawful access
research other subject-matter to
mining of works or other
purposes of scientific
organisations have lawful
which they have lawful
subject-matter to which they
research.
access and made in order to access
, for the purposes of
have lawful access, for the
carry out text and data
scientific research.
purposes of scientific research.
mining for the purposes of
scientific research
by such
organisations.
[provisionally agreed at
Member States shall provide
Trilogue 25/10/2018]
for educational
establishments and cultural
heritage institutions
conducting scientific
research within the
meaning of point (1)(a) or
(1)(b) of 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
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organisations, to also be
able to benefit from the
exception provided for in
this Article.
131.
Art. 3, para
1a. Reproductions and
1a.Copies of works or
GREEN
1a
extractions made for text
other subject-matter
and data mining purposes
made in compliance
1a. Copies of works or other
shall be stored in a secure
with paragraph 1 shall
subject-matter made in
manner, for example by
be stored with an
compliance with paragraph 1
trusted bodies appointed for
appropriate level of
shall be stored with an
this purpose.
security and not be
appropriate level of security
retained for longer than and may be retained for the
necessary for achieving
purposes of scientific
the purposes of
research, including for the
scientific research.
verification of research
results.
[provisionally agreed at
Trilogue 25/10/2018]
132.
Art. 3, para 2 2.
Any contractual
2.
Any contractual
2.
[Moved to Article 6(1)]
GREEN
provision contrary to the
provision contrary to the
exception provided for in
exception provided for in
[Moved to Article 6(1)]
paragraph 1 shall be
paragraph 1 shall be
unenforceable.
unenforceable.
[provisionally agreed at
Trilogue 25/10/2018]
[See Council’s Article 6(1)
(row 155)]
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133.
Art. 3, para 3 3.
Rightholders shall be
3.
Rightholders shall be
3.
Rightholders shall be
GREEN
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
3.
Rightholders shall be
integrity of the networks and integrity of the networks and integrity of the networks and allowed to apply measures to
databases where the works
databases where the works
databases where the works
ensure the security and
or other subject-matter are
or other subject-matter are
or other subject-matter are
integrity of the networks and
hosted. Such measures shall
hosted. Such measures shall
hosted. Such measures shall
databases where the works or
not go beyond what is
not go beyond what is
not go beyond what is
other subject-matter are
necessary to achieve that
necessary to achieve that
necessary to achieve that
hosted. Such measures shall
objective.
objective.
objective.
not go beyond what is
necessary to achieve that
objective.
[provisionally agreed at
Trilogue 25/10/2018]
134.
Art. 3, para 4 4.
Member States shall
4.
Member States shall
4.
Member States shall
GREEN
encourage rightholders and
encourage rightholders and
encourage rightholders and
,
research organisations to
research organisations to
research organisations
and
4.
Member States shall
define commonly-agreed
define commonly-agreed
cultural heritage
encourage rightholders and,
best practices concerning the best practices concerning the
institutions to define
research organisations and
application of the measures
application of the measures
commonly-agreed best
cultural heritage institutions to
referred to in paragraph 3.
referred to in paragraph
practices concerning the
define commonly-agreed best
3.
may continue to provide
application of the
obligation practices concerning the
text and data mining
and measures referred to
application of the obligation
exceptions in accordance
respectively in paragraph
s
and measures referred to
with point (a) of Article 5(3) 1a and 3.
respectively in paragraphs 1a
of Directive 2001/29/EC.
and 3.
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[provisionally agreed at
Trilogue 26 November]
[the relation with existing
exceptions under InfoSoc
Directive under Article 17a
(see row 306)]
135.
Art. 3a, title
Article 3a
Article 3a
Article 3a
Optional exception or
Optional exception or
Optional exception or
limitation for text and data
limitation for text and data limitation for text and data
mining
mining
mining
136.
Art. 3a, para
1.
Without prejudice to
1.
Without prejudice to 1. Without prejudice to Article
1
Article 3 of this Directive,
Article 3 of this Directive
3 of this Directive, Member
Member States may provide Member States may
States may/shall provide for
for an exception or a
provide for an exception or an exception or a limitation to
limitation to the rights
a limitation to the rights
the rights provided for in
provided for in Article 2 of
provided for in Article 2 of Article 2 of Directive
Directive 2001/29/EC,
Directive 2001/29/EC,
2001/29/EC, Articles 5(a) and
Articles 5(a) and 7(1) of
Articles 5(a) and 7(1) of
7(1) of Directive 96/9/EC,
Directive 96/9/EC and
Directive 96/9/EC and
Article 4(1)(a) and (b) of
Article 11(1) of this
Article 11(1) of this
Directive 2009/24/EC and
Directive for reproductions
Directive for temporary
Article 11(1) of this Directive
and extractions of lawfully
reproductions and
for temporary reproductions
accessible works and other
extractions of lawfully
and extractions of lawfully
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subject-matter that form a
accessible works and other accessible works and other
part of the process of text
subject-matter that form a subject-matter that form a
and data mining, provided
part of the process of text
part of the process for the
that the use of works and
and data mining.
purposes of text and data
other subject matter
mining.
referred to therein has not
been expressly reserved by
[COM suggestion to turn the
their rightholders, including
optional exception into a
by machine readable means.
mandatory one by replacing
“may provide” by “shall
provide” to be discussed
further at political level.
Apart from 'may' or 'shall', text
of Article 3a provisionally
agreed at trilogue 26/11/2018
as set out in rows 136, 137,
138 and 139]
137.
Art. 3a, para
2.
Reproductions and
GREEN
2 (EP)
extractions made pursuant
to paragraph 1 shall not be
2.
Reproductions and
used for purposes other
extractions made pursuant to
than text and data mining.
paragraph 1 may be retained
as long as necessary for the
purposes of text and data
mining.
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[provisionally agreed at
Trilogue 25/10/2018 /
26/11/2018]
138.
Art. 3a, para
2.
The exception or
GREEN
2 (Council)
limitation provided for in
paragraph 1 shall apply
2.
The exception or
provided that the use of
limitation provided for in
works and other subject
paragraph 1 shall apply
matter referred to therein
provided that the use of works
has not been expressly
and other subject matter
reserved by their
referred to therein has not
rightholders including by
been expressly reserved by
technical means.
their rightholders in an
appropriate manner, such as
[See para. 1 of EP text (row machine readable means for
136)]
the content made publicly
available online.
[provisionally agreed at
Trilogue 26/11/2018 in
conjunction with wording of
recital (13a) (row 28)]
139.
Art. 3a, para
3.
Member States may
GREEN
3
continue to provide text and
data mining exceptions in
3. This Article shall not
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accordance with point (a) of
affect the application of
Article 5 (3) of Directive
Article 3 of this Directive.
2001/29/EC.
[This phrase replaces the
'Without prejudice'-
clarification previously
contained in paragraph 1.
[provisionaly agreed at
Trilogue 26/11/2018]
Agreed at Trilogue 25/10/2018
to introduce the relation with
existing exceptions under
InfoSoc Directive under
Article 17a (see row 306)]
140.
Art. 4,
Article 4
Article 4
Article 4
Article 4
Use of works and other
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
subject-matter in digital and
cross-border teaching
cross-border teaching
cross-border teaching
cross-border teaching
activities
activities
activities
activities
141.
Art. 4, para 1 1.
Member States shall
1.
Member States shall
1.
Member States shall
GREEN
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
1. Member States shall
provided for in Articles 2
provided for in Articles 2
provided for in Articles 2
provide for an exception or
and 3 of Directive
and 3 of Directive
and 3 of Directive
limitation to the rights
2001/29/EC, Articles 5(a)
2001/29/EC, Articles 5(a)
2001/29/EC, Articles 5(a
),
provided for in Articles 2 and
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and 7(1) of Directive
and 7(1) of Directive
(b), (d) and
(e) and Article
3 of Directive 2001/29/EC,
96/9/EC, Article 4(1) of
96/9/EC, Article 4(1) of
7(1) of Directive 96/9/EC,
Articles 5(a),
(b), (d) and (e)
Directive 2009/24/EC and
Directive 2009/24/EC and
Article 4(1
)(a) and (b) of
and 7(1) of Directive 96/9/EC,
Article 11(1) of this
Article 11(1) of this
Directive 2009/24/EC and
Article 4(1)
(a), and (b) of
Directive in order to allow
Directive in order to allow
Article 11(1) of this
Directive 2009/24/EC and
for the digital use of works
for the digital use of works
Directive in order to allow
Article 11(1) of this Directive
and other subject-matter for
and other subject-matter for
for the digital use of works
in order to allow the digital use
the sole purpose of
the sole purpose of
and other subject-matter for
of works and other subject-
illustration for teaching, to
illustration for teaching, to
the sole purpose of
matter for the sole purpose of
the extent justified by the
the extent justified by the
illustration for teaching, to
illustration for teaching, to the
non-commercial purpose to
non-commercial purpose to
the extent justified by the
extent justified by the non-
be achieved, provided that
be achieved, provided that
non-commercial purpose to
commercial purpose to be
the use:
the use:
be achieved, provided that
achieved, provided that
such
the
such use:
use:
[provisionally agreed at
Trilogue 26/11/2018;
reference to Directive
2009/24/EC agreed provided
that it is clarified in a recital
that distribution of software
allowed under the exception is
limited to digital transmission
of software]
142.
Art. 4, para
(a) takes place on the
(a) takes place on the
(a) takes place on
under
GREEN
1, point (a)
premises of an educational
premises of an educational
the premises
responsibility
establishment or through a
establishment
, or in any
of an educational
(a) takes place
under the
secure electronic network
other venue in which the
establishment
, on its
responsibility of an
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accessible only by the
teaching activity takes place premises or other venues,
educational establishment,
on
educational establishment's
under the responsibility of
or through a secure
its premises or other venues,
pupils or students and
the educational
electronic network
or through a secure electronic
teaching staff;
establishment, or through a
accessible only by the
environment accessible only
secure electronic network
educational establishment's
by the educational
environment accessible only pupils or students and
establishment's pupils or
by the educational
teaching staff;
and
students and teaching staff;
establishment's pupils or
and
students and teaching staff;
[provisionally agreed at
Trilogue 26/11/2018 together
with text on recital 16a, row
33]
143.
Art. 4, para
(b) is accompanied by the
(b) is accompanied by the (b) is accompanied by the
GREEN
1, 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, (b) is accompanied by the
unless this turns out to be
unless this turns out to be
unless this turns out to be
indication of the source,
impossible.
impossible
for reasons of
impossible.
including the author's name,
practicability.
unless this turns out to be
impossible.
[provisionally agreed at
Trilogue 25/10/2018]
144.
Art. 4, para
2.
Member States may
2.
Member States may
2.
Notwithstanding
GREEN
2, 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
2.
Notwithstanding Article
paragraph 1 does not apply
paragraph 1 does not apply
exception adopted pursuant
6(1), Member States may
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generally or as regards
generally or as regards
to paragraph 1 does not
provide that the exception
specific types of works or
specific types of works or
apply generally or as regards adopted pursuant to paragraph
other subject-matter, to the
other subject-matter,
such as specific
uses or types of
1 does not apply generally or
extent that adequate licences
material which is primarily
works or other subject-
as regards specific
uses or
authorising the acts
intended for the educational matter, to the extent that
types of works or other
described in paragraph 1 are
market or sheet music, to
adequate licences
covering
subject-matter,
such as
easily available in the
the extent that adequate
the needs of educational
material which is primarily
market.
licences
licencing
establishments and
intended for the educational
agreements authorising the
authorising the acts
market or sheet music, to the
acts described in paragraph 1 described in paragraph 1 are extent that
suitable licences
and tailored to the needs
easily available in the
authorising the acts described
and specificities of
market.
in paragraph 1
covering the
educational establishments
needs and specificities of
are easily available in the
educational establishments
market.
are easily available in the
market.
[provisionally agreed at
Trilogue 25/10/2018 /
26/11/2018 together with text
on recitals (16) and (17), rows
32 and 35 tbc by trilogue]
145.
Art. 4, para
Member States availing
Member States availing
Member States availing
GREEN
2, sub-para 2 themselves of the provision
themselves of the provision
themselves of the provision
of the first subparagraph
of the first subparagraph
of the first subparagraph
Member States availing
shall take the necessary
shall take the necessary
shall take the necessary
themselves of the provision of
measures to ensure
measures to ensure
measures to ensure
the first subparagraph shall
appropriate availability and
appropriate availability and
appropriate availability and
take the necessary measures to
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visibility of the licences
visibility of the licences
visibility of
that
ensure appropriate availability
authorising the acts
authorising the acts
rightholders make the
and visibility of the licences
described in paragraph 1 for
described in paragraph 1 for licences authorising the acts
authorising the acts described
educational establishments.
educational establishments.
described in paragraph 1
in paragraph 1 for educational
available and visible for
establishments.
educational establishments.
[provisionally agreed at
Trilogue 26/11/2018 together
with text on recital (17) and
(17a), rows 35 and 36]
146.
Art. 4, para 3 3.
The use of works and
3.
The use of works and
3.
The use of works and
GREEN
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
3. The use of works and other
for teaching through secure
for teaching through secure
for teaching through secure
subject-matter for the sole
electronic networks
electronic networks
electronic networks
purpose of illustration for
undertaken in compliance
environments undertaken in undertaken in compliance
teaching through secure
with the provisions of
compliance with the
with the provisions of
electronic
environments
national law adopted
provisions of national law
national law adopted
undertaken in compliance with
pursuant to this Article shall adopted pursuant to this
pursuant to this Article shall the provisions of national law
be deemed to occur solely in Article shall be deemed to
be deemed to occur solely in adopted pursuant to this
the Member State where the
occur solely in the Member
the Member State where the Article shall be deemed to
educational establishment is State where the educational
educational establishment is occur solely in the Member
established.
establishment is established. established.
State where the educational
establishment is established.
[provisionally agreed at
Trilogue 25/10/2018 /
26/11/2018 together with text
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on recital 16a, row 33]
147.
Art. 4, para 4 4.
Member States may
4.
Member States may
4.
Member States may
GREEN
provide for fair
provide for fair
provide for fair
compensation for the harm
compensation for the harm
compensation for the harm
4.
Member States may
incurred by the rightholders
incurred by the rightholders
incurred by the
to
provide for fair compensation
due to the use of their works due to the use of their works rightholders due to the use
for the harm incurred by the
to
or other subject-matter
or other subject-matter
of their works or other
rightholders due to the use of
pursuant to paragraph 1.
pursuant to paragraph 1.
subject-matter pursuant to
their works or other subject-
paragraph 1.
matter pursuant to paragraph 1.
[provisionally agreed at
Trilogue 25/10/2018 /
26/11/2018 together with text
on recital (17a), row 36]
148.
Art. 4, para
4a. Without prejudice to
[provisionally agreed at
4a
paragraph 2, any
trilogue 25/10/2018 to deal
contractual provision
with contractual override
contrary to the exception or
under Article 6(1)]
limitation adopted pursuant
to paragraph 1 shall be
[Issue of royalty-free licences
unenforceable. Member
to be further discussed in the
States shall ensure that
context of the remuneration
rightholders have the right
chapter and recital (40) of the
to grant royalty-free
Council]
licences authorising the acts
described in paragraph 1,
generally or as regards
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specific types of works or
other subject-matter that
they may choose.
[See Council’s Article 6(1)
(row 155)]
149.
Art. 5, title
Article 5
Article 5
Article 5
Article 5
Preservation of cultural
Preservation of cultural
Preservation of cultural
Preservation of cultural
heritage
heritage
heritage
heritage
150.
Art. 5, [para
Member States shall provide
1.
Member States shall
Member States shall provide
GREEN
1 (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
Member States shall provide
Directive 2001/29/EC,
Article 2 of Directive
Directive 2001/29/EC,
for an exception to the rights
Articles 5(a) and 7(1) of
2001/29/EC, Articles 5(a)
Articles 5(a) and 7(1) of
provided for in Article 2 of
Directive 96/9/EC, Article
and 7(1) of Directive
Directive 96/9/EC, Article
Directive 2001/29/EC, Articles
4(1)(a) of Directive
96/9/EC, Article 4(1)(a) of
4(1)(a) of Directive
5(a) and 7(1) of Directive
2009/24/EC and Article
Directive 2009/24/EC and
2009/24/EC and Article
96/9/EC, Article 4(1)(a) of
11(1) of this Directive,
Article 11(1) of this
11(1) of this Directive,
Directive 2009/24/EC and
permitting cultural heritage
Directive, permitting cultural permitting cultural heritage
Article 11(1) of this Directive,
institutions, to make copies
heritage institutions to make institutions, to make copies
permitting cultural heritage
of any works or other
copies of any works or other of any works or other
institutions to make copies of
subject-matter that are
subject-matter that are
subject-matter that are
any works or other subject-
permanently in their
permanently in their
permanently in their
matter that are permanently in
collections, in any format or collections, in any format or
collections, in any format or their collections, in any format
medium, for the sole purpose medium, for the sole purpose medium, for the sole
or medium, for
purposes of
of the preservation of such
purposes of preservation of
purpose of the preservation
preservation of such works or
works or other subject-
such works or other subject-
of such works or other
other subject-matter and to the
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matter and to the extent
matter and to the extent
subject-matter and to the
extent necessary for such
necessary for such
necessary for such
extent necessary for such
preservation.
preservation.
preservation.
preservation.
[provisionally agreed at
trilogue 25/10/2018]
151.
Art. 5, para
1a. Member States shall
[To be further discussed at
1a
ensure that any material
political level; COM to
resulting from an act of
provide drafting suggestion for
reproduction of material in
this EP issue, to be further
the public domain shall not
discussed with Council; this
be subject to copyright or
suggestion should cover only
related rights, provided that
non-original reproduction of
such reproduction is a
works for which the term of
faithful reproduction for
protection has elapsed; not
purposes of preservation of
using the terms „public
the original material.
domain“, „faithful
reproduction“; the recitals to
clarify that this does not affect
other rights, such as property
rights]
152.
Art. 5, para
1b.
Any contractual
GREEN
1b
provision contrary to the
exception provided for in
[provisionally agreed at
paragraph 1 shall be
trilogue 25/10/2018 to deal
with contractual override
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unenforceable.
under Article 6(1)]
[See Council’s Article 6(1)
(row 155)]
153.
Art. 6,
Article 6
Article 6
Article 6
Article 6
Common provisions
Common provisions
Common provisions
Common provisions
title
154.
Art. 6, para 1
1.
Accessing content
[To be discussed further at
(EP)
covered by an exception
political level; COM to
provided for in this
provide a technical note
Directive shall not confer
clarifying situation according
on users any entitlement to
to jurisprudence, not
use it pursuant to another
restricting the notion of
exception.
“lawful access”]
155.
Art. 6, para 1
1.
Any contractual
GREEN
(Council)
provision contrary to the
exceptions provided for in
1. Any contractual provision
Articles 3, 4(1) and 5 shall
contrary to the exceptions
be unenforceable.
provided for in
Articles 3, 4
and 5 shall be unenforceable.
[See Article 3(2) of the COM
proposal and Parliament’s
[
provisionally agreed at
Articles 3(2) and 4(4a) and
trilogue 25/10/2018]
5(1b)]
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156.
Art. 6, para 2 Article 5(5) and the first,
2.
Article 5(5) and the
2.
Article 5(5) and the
of
2. Article 5(5) of Directive
third and fifth subparagraphs first, third
, fourth and fifth
Directive 2001/29/EC shall 2001/29/EC shall apply to the
of Article 6(4) of Directive
subparagraphs of Article
apply to the exceptions and exceptions and the limitation
2001/29/EC shall apply to
6(4) of Directive
the limitation provided for provided for under this Title.
the exceptions and the
2001/29/EC shall apply to
under this Title. The first,
The first, third and fifth
limitation provided for under the exceptions and the
third and fifth subparagraphs subparagraphs of Article 6(4)
this Title.
limitation provided for under of Article 6(4) of Directive
of Directive 2001/29/EC shall
this Title.
2001/29/EC shall apply to
apply to Articles 3, 4 and 5 of
the exceptions
Articles 3,
this Directive.
4(1) and the limitation
provided for under
5 of this
[EP agrees to drop reference
Title
Directive.
to the fourth subparagraph of
Article 6(4) of Directive
2001/29/EC;
EP: second sentence to be left
open until discussions on
Article 7 finalised]
157.
TITLE III
TITLE III
TITLE III
TITLE III
MEASURES TO IMPROVE MEASURES TO IMPROVE MEASURES TO IMPROVE
LICENSING PRACTICES
LICENSING PRACTICES
LICENSING PRACTICES
MEASURES TO IMPROVE
AND ENSURE WIDER
AND ENSURE WIDER
AND ENSURE WIDER
LICENSING PRACTICES
ACCESS TO CONTENT
ACCESS TO CONTENT
ACCESS TO CONTENT
AND ENSURE WIDER
ACCESS TO CONTENT
158.
CHAPTER 1
CHAPTER 1
CHAPTER 1
CHAPTER 1
Out-of-commerce works
Out-of-commerce works
Out-of-commerce works
Out-of-commerce works
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159.
Art. 7, title
Article 7
Article 7
Article 7
Article 7
Use of out-of-commerce
Use of out-of-commerce
Use of out-of-commerce
Use of out-of-commerce works
works by cultural heritage
works by cultural heritage
works by cultural heritage
by cultural heritage
institutions
institutions
institutions
institutions
160.
Art. 7, para
1.
Member States shall
1.
Member States shall
1.
Member States shall
GREEN
1,
provide that when a
provide that when a
provide that when a
introductory
collective management
collective management
collective management
1.
Member States shall
part
organisation, on behalf of its organisation, on behalf of its organisation, on behalf of
in provide that a collective
members, concludes a non-
members, concludes a non-
accordance with its
management organisation, in
exclusive licence for non-
exclusive licence for non-
members,
accordance with its mandates,
commercial purposes with a
commercial purposes with a
concludes
mandates, may
may conclude a non-exclusive
cultural heritage institution
cultural heritage institution
conclude a non-exclusive
licence for non-commercial
for the digitisation,
for the digitisation,
licence for non-commercial
purposes with a cultural
distribution, communication distribution, communication purposes with a cultural
heritage institution for the
to the public or making
to the public or making
heritage institution for the
reproduction, distribution,
available of out-of-
available of out-of-
digitisation
reproduction,
communication to the public
commerce works or other
commerce works or other
distribution, communication or making available to the
subject-matter permanently
subject-matter permanently
to the public or making
public of out-of-commerce
in the collection of the
in the collection of the
available
to the public of
works or other subject-matter
institution, such a non-
institution, such a non-
out-of-commerce works or
permanently in the collection
exclusive licence may be
exclusive licence may be
other subject-matter
of the institution, irrespective
extended or presumed to
extended or presumed to
permanently in the collection of whether all rightholders
apply to rightholders of the
apply to rightholders of the
of the institution, such a non- covered by the licence have
same category as those
same category as those
exclusive licence may be
mandated the collective
covered by the licence who
covered by the licence who
extended or presumed to
management organisation,
are not represented by the
are not represented by the
apply to rightholders of the
provided that:
collective management
collective management
same category as those
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organisation, provided that:
organisation, provided that:
irrespective of whether all
rightholders covered by the
licence who are not
[provisionally agreed at
represented by
have
Trilogue 26/11/2018]
mandated the collective
management organisation,
provided that:
161.
Art. 7, para
(a) the collective
(a) the collective
(a) the collective
GREEN
1, point (a)
management organisation is, management organisation is, management organisation is,
on the basis of mandates
on the basis of mandates
on the basis of mandates
(a) the collective
from rightholders, broadly
from rightholders, broadly
from rightholders,
management organisation is,
representative of
representative of
broadly
sufficiently
on the basis of mandates from
rightholders in the category
rightholders in the category
representative of
rightholders, sufficiently
of works or other subject-
of works or other subject-
rightholders in the
representative of rightholders
matter and of the rights
matter and of the rights
category
relevant type of
in the relevant type of works
which are the subject of the
which are the subject of the
works or other subject-
or other subject-matter and of
licence;
licence;
matter and of the rights
the rights which are the subject
which are the subject of the
of the licence;
licence;
[provisionaly agreed at
Trilogue 26/11/2018; to be
further discussed whether the
meaning of “sufficiently
representative” should be
further clarified in the
recitals]
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162.
Art. 7, para
(b) equal treatment is
(b) equal treatment is
(b) equal treatment is
(b) equal treatment is
1, point (b)
guaranteed to all
guaranteed to all
guaranteed to all
guaranteed to all rightholders
rightholders in relation to the rightholders in relation to the rightholders in relation to
in relation to the terms of the
terms of the licence;
terms of the licence;
the terms of the licence;
licence
.
163.
Art. 7, para
(c) all rightholders may at (c) all rightholders may at (c) all rightholders may at
GREEN
1, point (c)
any time object to their
any time object to their
any time object to
exclude
works or other subject-
works or other subject-
the possibility for collective [
This point is moved to new
matter being deemed to be
matter being deemed to be
management organisations paragraph 1b below – row
out of commerce and
out of commerce and
to license their works or
167]
exclude the application of
exclude the application of
other subject-matter being
the licence to their works or
the licence to their works or
deemed to be out of
[provisionaly agreed at
other subject-matter.
other subject-matter.
commerce and
in
Trilogue 26/11/2018]
accordance with this
Article, either in general or
in specific cases, or exclude
the application of the
any licence
granted in
accordance with this
Article to their works or
other subject-matter.
164.
Art. 7, para
1a.
Member States shall
1a. Member States shall
1a
provide for an exception or
provide for an exception or
limitation to the rights
limitation to the rights
provided for in Articles 2
provided for in Articles 2 and
and 3 of Directive
3 of Directive 2001/29/EC,
2001/29/EC, Articles 5(a)
Articles 5(a), (b), (d) and (e)
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and 7(1) of Directive
and 7(1) of Directive 96/9/EC,
96/9/EC, Article 4(1) of
Article 4(1) of Directive
Directive 2009/24/EC, and
2009/24/EC, and Article 11(1)
Article 11(1) of this
of this Directive, in order to
Directive, permitting
allow cultural heritage
cultural heritage
institutions to make available
institutions to make copies
out-of-commerce works or
available online of out-of-
other subject-matter that are
commerce works that are
permanently in their
located permanently in their
collections for non-
collections for not-for-profit
commercial purposes,
purposes, provided that:
provided that:
[to be discussed further]
165.
Art. 7, para
(a)
the name of the
(a) [the author or any other
1a, point (a)
author or any other
identifiable rightholder was
identifiable rightholder is
informed individually at least
indicated, unless this turns
six months before the use,
out to be impossible;
unless this turns out to be
impossible, and] the name of
the author or any other
identifiable rightholder is
indicated, unless this turns
out to be impossible;
[Council to get back to
Member States on the deletion
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of the part in strikethrough]
166.
Art. 7, para
(b)
all rightholders may at
(b) such works or other
1a, point (b)
any time object to their
subject-matter are made
works or other subject-
available on dedicated non-
matter being deemed to be
commercial portals websites
out of commerce and
[which are accessible on the
exclude the application of
premises of cultural heritage
the exception to their works
institutions].
or other subject-matter.
[
Text of EP covered in new
paragraph 1b below – row
167; Council to get back to
Member States on the deletion
of the part in strikethrough]
167.
Art. 7, para
1b. Member States shall
GREEN
1b
provide that the exception
adopted pursuant to
1b. Member States shall
paragraph 1a does not apply
provide that the exception or
in sectors or for types of
limitation referred to in the
works where appropriate
previous paragraph only
licensing-based solutions,
applies to types of works or
including but not limited to
other subject-matter for which
solutions provided for in
no collective management
paragraph 1, are available.
organisation exists that fulfils
Member States shall, in
the conditions referred to in
consultation with authors,
point (a) of paragraph 1.
other rightholders,
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collective management
1c. Member States shall
organisations and cultural
provide that all rightholders
heritage institutions,
may at any time, easily and
determine the availability of
effectively, exclude their
extended collective
works or other subject-matter
licensing-based solutions
from the licensing mechanism
for specific sectors or types
referred to in paragraph 1 or
of works.
from uses under the exception
or limitation referred to in
paragraph 1a, either in general
or in specific cases, including
after the conclusion of a
licence or the beginning of the
use concerned.
[provisionaly agreed at
Trilogue 26/11/2018]
168.
Art. 7, para
2.
A work or other
2.
A work or other
2.
A work or other
GREEN
2, 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-
2.
A work or other subject-
commerce when the whole
commerce when the whole
commerce when
it can be
matter shall be deemed to be
work or other subject-matter, work or other subject-matter,
presumed in good faith
out-of-commerce when it can
in all its translations,
in all its translations,
that the whole work or other be presumed in good faith that
versions and manifestations, versions and manifestations, subject-matter, in all its
the whole work or other
is not available to the public is not available to the public translations, versions and
subject-matter is not available
through customary channels
through customary channels manifestations, is not
to the public through
of commerce and cannot be
of commerce and cannot be
available to the public
customary channels of
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reasonably expected to
reasonably expected to
through customary channels
commerce after a reasonable
become so.
become so.
Member States
of commerce and cannot be
effort is made to determine
may provide a cut-off date
reasonably expected to
such availability.
in relation to determining
become so.
after a
whether a work previously
reasonable effort is made
[provisionally agreed at
commercialised is deemed
to determine such
Trilogue 26/11/2018]
to be out of commerce.
availability.
[See definition of out-of-
commerce work in
Parliament’s Article 2(4a)
(rows 122-126)]
169.
Art. 7, para
Member States shall, in
Member States shall, in
Member States shall, in
GREEN
2, sub-para 2 consultation with
consultation with
consultation with
rightholders, collective
rightholders, collective
rightholders, collective
Member States may provide
management organisations
management organisations
management organisations
for specific requirements,
such
and cultural heritage
and cultural heritage
and cultural heritage
as a cut-off date, to determine
institutions, ensure that the
institutions, ensure that the
institutions, ensure that the
whether works and other
requirements used to
requirements used to
may provide for specific
subject-matter can be licensed
determine whether works
determine whether works
requirements used to
in accordance with paragraph
and other subject-matter can and other subject-matter can determine whether works
1
or used under the
be licensed in accordance
be licensed in accordance
and other subject-matter can
exception or limitation
with paragraph 1 do not
with paragraph 1
or used in
be licensed in accordance
referred to in paragraph 1a.
extend beyond what is
accordance with paragraph with paragraph 1 do
. Such
Such requirements shall not
necessary and reasonable
1a do not extend beyond
requirements shall not
extend beyond what is
and do not preclude the
what is necessary and
extend beyond what is
necessary and reasonable
, and
possibility to determine the
reasonable and do not
necessary and reasonable
,
shall not preclude the
out-of-commerce status of a
preclude the possibility to
and do
shall not preclude the possibility to determine the
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collection as a whole, when
determine the out-of-
possibility to determine the
out-of-commerce status of a
it is reasonable to presume
commerce status of a
out-of-commerce status of a set of works or other subject-
that all works or other
collection as a whole, when
collection as
set of works or matter as a whole, when it is
subject-matter in the
it is reasonable to presume
other subject-matter as a
reasonable to presume that all
collection are out of
that all works or other
whole, when it is reasonable works or other subject-matter
commerce.
subject-matter in the
to presume that all works or
are out-of commerce.
collection are out of
other subject-matter in the
commerce.
collection are out
-of
-
[provisionaly agreed at
commerce.
Trilogue 26/11/2018]
170.
Art. 7,
3.
Member States shall
3. Member States shall
3.
[Moved to new Article
3.
[Moved to new Article
para 3,
provide that appropriate
provide that appropriate
8a(2)]
8a(2)]
introductory
publicity measures are taken publicity measures are taken
part
regarding:
regarding:
171.
Art. 7, para
(a) the deeming of works
(a) the deeming of works or
3, point (a)
or other subject-matter as out other subject-matter as out of
of commerce;
commerce;
172.
Art. 7, para
(b) the licence, and in
(b) the
any licence, and in
3, point (b)
particular its application to
particular its application to
unrepresented rightholders;
unrepresented rightholders;
173.
Art. 7, para
(c) the possibility of
(c) the possibility of
3, point (c)
rightholders to object,
rightholders to object,
referred to in point (c) of
referred to in point (c) of
paragraph 1;
paragraph 1
and point (b) of
paragraph 1a;
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174.
Art. 7, para
including during a
including during a
3, closing
reasonable period of time
reasonable period of time
at
phrase
before the works or other
least six months before the
subject-matter are digitised,
works or other subject-
distributed, communicated to matter are digitised,
the public or made available. distributed, communicated to
the public or made available.
175.
Art. 7,
4.
Member States shall
4.
Member States shall
4.
Member States shall
GREEN
para 4,
ensure that the licences
ensure that the licences
ensure that the licences
introductory
referred to in paragraph 1 are referred to in paragraph 1 are referred to in paragraph 1
4.
Member States shall
part / Art. 7,
sought from a collective
sought from a collective
are sought from a collective
ensure that the licences
para 4
management organisation
management organisation
management organisation
referred to in paragraph 1 are
(Council)
that is representative for the
that is representative for the
that is representative for the
sought from a collective
Member State where:
Member State where:
Member State where:
the
management organisation that
cultural heritage
is representative for the
institution is established.
Member State where the
cultural heritage institution is
established.
[provisionally agreed at
Trilogue 26/11/2018; to be
discussed further whether the
meaning of “representative”
should be further clarified in
the recitals]
176.
Art. 7,
5.
This Article shall not GREEN
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para 5,
apply to sets of out-of-
5.
This Article shall not
introductory
commerce if, following the
apply to sets of out-of-
part
reasonable effort to
commerce works if, on the
(Council)
determine commercial
basis of the reasonable effort
availability, there is
referred to in paragraph 2,
evidence that such sets
there is evidence that such sets
predominantly consist of:
predominantly consist of:
[provisionally agreed at
Trilogue 26/11/2018]
177.
Art. 7,
(a) the works or
(a) the works or
(a) the works or
other
GREEN
para 4, point
phonograms were first
phonograms were first
subject-matter phonograms
(a) (EP)/
published or, in the absence
published or, in the absence
were first published or, in
(a) works or other subject-
Art. 7, para
of publication, where they
of publication, where they
the absence of publication,
matter first published or, in the
5, point (a)
were first broadcast, except
were first broadcast, except
where they were first
absence of publication, first
(Council)
for cinematographic and
for cinematographic and
broadcast
in a third
broadcast in a third country,
audiovisual works;
audiovisual works;
country, except for
except for cinematographic or
cinematographic and
or
audiovisual works;
audiovisual works;
[provisionally agreed at
Trilogue 26/11/2018]
178.
Art. 7,
(b) the producers of the
(b) the producers of the
(b)
cinematographic or
GREEN
para 4, point
works have their
works have their
audiovisual works, the
(b) (EP)/ Art. headquarters or habitual
headquarters or habitual
producers of the
(b) cinematographic or
7, para 5,
residence, for
residence, for
works
which have their
audiovisual works, the
point (b)
cinematographic and
cinematographic and
headquarters or habitual
producers of which have their
residence, for
headquarters or habitual
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(Council)
audiovisual works; or
audiovisual works; or
cinematographic and
residence in a third country; or
audiovisual works
in a third
country; or
[provisionally agreed at
Trilogue 26/11/2018]
179.
Art. 7,
(c) the cultural heritage
(c) the cultural heritage
c)
the cultural heritage
GREEN
para 4, point
institution is established,
institution is established,
institution is established,
(c) (EP) /Art. when a Member State or a
when a Member State or a
works or other subject-
c)
works or other subject-
7, para 5,
third country could not be
third country could not be
matter of third country
matter of third country
point (c)
determined, after reasonable determined, after reasonable
nationals when a Member
nationals when a Member
(Council)
efforts, according to points
efforts, according to points
State or a third country
State or a third country could
(a) and (b).
(a) and (b).
could not be determined,
not be determined, after a
after
a reasonable
reasonable effort, according to
efforts
effort, according to
points (a) and (b);
points (a) and (b).
);
[provisionally agreed at
Trilogue 26/11/2018]
180.
Art. 7, para 5 5.
Paragraphs 1, 2 and 3
5.
Paragraphs 1, 2 and 3
5.
Paragraphs 1, 2 and 3
GREEN
(EP)/ Art. 7,
shall not apply to the works
shall not apply to the works
shall not apply to
unless the
para 5,
or other subject-matter of
or other subject-matter of
works or other subject-
unless the collective
closing
third country nationals
third country nationals
matter
collective
management organisation is
phrase
except where points (a) and
except where points (a) and
management organisation
sufficiently representative of
(Council)
(b) of paragraph 4 apply.
(b) of paragraph 4 apply.
is sufficiently
rightholders of that third
representative of
country in the meaning of
rightholders of that third
point (a) of paragraph 1.
country nationals except
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where points
in the meaning
of point (a) and (b) of
paragraph 4 apply
1.
[provisionally agreed at
Trilogue 26/11/2018]
181.
Art. 8, title
Article 8
Article 8
Article 8
Article 8
Cross-border uses
Cross-border uses
Cross-border uses
Cross-border uses
182.
Art. 8, para 1 1.
Works or other
1.
Works
Out-of-
1.
Works or other
1.
A licence granted in
subject-matter covered by a
commerce works or other
subject-matter covered by
accordance with Article 7 may
licence granted in
subject-matter covered by a
a
A licence granted in
allow the use of out-of-
accordance with Article 7
licence granted in
accordance with Article 7
commerce works or other
may be used by the cultural
accordance with Article 7
may be used
allow the use
subject-matter by the cultural
heritage institution in
may be used by the cultural
of out-of-commerce works heritage institution in any
accordance with the terms of heritage institution in
or other subject-matter by Member State.
the licence in all Member
accordance with the terms of the cultural heritage
States.
the licence
that Article in all institution in accordance
2. The uses of works and
Member States.
with the terms of the licence
other subject-matter under the
in all
any Member
exception or limitation
States
State.
referred to in Article 7(1a)
shall be deemed to occur
solely in the Member State
where the cultural heritage
institution undertaking that
use is established.
[paragraph 1 provisionally
agreed at Trilogue
26/11/2018; paragraph 2
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depending on Article 7(1a)]
183.
Art. 8, para 2 2.
Member States shall
2.
Member States shall
2.
[Moved to new Article
GREEN
ensure that information that
ensure that information that
8a(1)]
allows the identification of
allows the identification of
2.
[Moved to new Article
the works or other subject-
the works or other subject-
8a(1)]
matter covered by a licence
matter covered by a licence
granted in accordance with
granted in accordance with
[provisionally agreed at
Article 7 and information
Article 7 and information
Trilogue 26/11/2018]
about the possibility of
about the possibility of
rightholders to object
rightholders to object
referred to in Article 7(1)(c)
referred to in
point (c) of
are made publicly accessible Article 7(1)
and point (b) of
in a single online portal for
Article 7(1a) are made
at least six months before the publicly
permanently, easily
works or other subject-
and effectively accessible in
matter are digitised,
a
public single online portal
distributed, communicated to for at least six months before
the public or made available the works or other subject-
in Member States other than matter are digitised,
the one where the licence is
distributed, communicated to
granted, and for the whole
the public or made available
duration of the licence.
in Member 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
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licence.
184.
Art. 8, para 3 3.
The portal referred to
3.
The portal referred to
3.
[Moved to new Article
GREEN
in paragraph 2 shall be
in paragraph 2 shall be
8a(1) second subparagraph]
established and managed by
established and managed by
3.
[Moved to new Article
the European Union
the European Union
8a(1) second subparagraph]
Intellectual Property Office
Intellectual Property Office
in accordance with
in accordance with
[provisionally agreed at
Regulation (EU) No
Regulation (EU) No
Trilogue 26/11/2018]
386/2012.
386/2012.
185.
Art. 8a, title
GREEN
Article 8a
Article 8a
Publicity measures
Publicity measures
[provisionally agreed at
Trilogue 26/11/2018]
186.
Art. 8a, para
1.
Member States shall
GREEN
1, sub-para 1
ensure that information that
allows
for the purposes of
1.
Member States shall
the identification of the
out-
ensure that information
from
of-commerce works or other
cultural heritage institutions,
subject-matter covered by a
collective management
licence granted in
organisations or relevant
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accordance with Article 7
public authorities for the
and
as well as information
purposes of the identification
about the
of the out-of-commerce works
possibility
possibilities of
or other subject-matter
rightholders to object
covered by a licence granted
referred to in Article 7(1)(c)
in accordance with Article
are
), and, as soon as it is
7(1) or used under the
available, information on
exception or limitation
the parties to the licence,
referred to in Article 7(1a) as
the covered territories and well as information about the
the allowed uses is made
possibilities of rightholders
publicly accessible in a
referred to in Article
7(1c),
single online portal for
from
and, as soon as it is available
at least six months before
and where relevant,
the works or other subject-
information on the parties to
matter are digitised,
the licence,
the covered
distributed, communicated
territories
and
the allowed uses
to the public or made
is made permanently, easily
available in Member States
and effectively accessible in a
other than the one where the
public single online portal
licence is granted, and for
from at least six months before
the whole duration of
to the
the works or other subject-
public in accordance with
matter are distributed,
the licence.
communicated to the public or
made available to the public in
[Article 8(2) of the COM
accordance with the licence
or
proposal, amended]
under the exception or
limitation.
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[Article 8(2) of the COM
proposal, amended]
[provisionally agreed at
Trilogue 26/11/2018, including
clarification in recital (27)
that the licence may cover one,
several or all Member States;
part in yellow depending on
Article 7(1a)]
187.
Art. 8a, para
3.
The portal referred to
GREEN
1, sub-para 2
in paragraph 2 shall be
established and managed by The portal shall be established
the European Union
and managed by the European
Intellectual Property Office
Union Intellectual Property
in accordance with
Office in accordance with
Regulation (EU) No
Regulation (EU) No 386/2012.
386/2012.
[Article 8(3) of the COM
[Article 8(3) of the COM
proposal, amended]
proposal, amended]
[provisionally agreed at
Trilogue 26/11/2018]
188.
Art. 8a, para
2.
Member States shall
GREEN
2
provide that
, if necessary
for the general awareness
2.
Member States shall
of rightholders, further
provide that, if necessary for
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appropriate publicity
the general awareness of
measures are taken
rightholders, further
regarding: (a) the deeming
appropriate publicity measures
of works or other subject-
are taken regarding the
matter as out of commerce;
possibility for collective
(b) the licence, and in
management organisations to
particular its application to
license works or other subject-
unrepresented rightholders;
matter in accordance with
the possibility for collective Article 7, the licences granted
,
management organisations the uses under the exception
to license works or other
or limitation referred to in
subject-matter in
Article 7(1a) and the
accordance with Article 7,
possibilities of rightholders
the licences granted and (c) referred to in Article
7(1c). the possibilities to object of
rightholders referred to in
The additional appropriate
point (c) of paragraph 1
publicity measures shall be
Article 7(1)(c) ;
.
taken in the Member State
where the licence is sought
in
Including during a
accordance to Article 7(1) or,
reasonable period of time
for uses under the exception
before the works or other
or limitation referred to in
subject-matter are digitised,
Article 7(1a), where the
distributed, communicated to
cultural heritage institution
the public or made available.
is established. If there is
evidence, such as the origin of
The additional appropriate the works or other subject-
publicity measures shall be matter, to suggest that the
taken in the Member State awareness of rightholders
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where the licence is sought. could be more efficiently
If there is evidence, such as raised in other Member States
the origin of the works or
or third countries, such
other subject-matter, to
publicity measures shall also
suggest that the awareness cover those Member States
of rightholders could be
and third countries.
more efficiently raised in
other Member States or
[Article 7(3) of the COM
third countries, such
proposal, amended]
publicity measures shall
also cover those Member
States and third countries. [provisionally agreed at
[Article 7(3) of the COM
Trilogue 26/11/2018; part in
proposal, amended]
yellow depending on Article
7(1a)]
189.
Art. 9, title
Article 9
Article 9
Article 9
Article 9
Stakeholder dialogue
Stakeholder dialogue
Stakeholder dialogue
Stakeholder dialogue
190.
Art 9
Member States shall ensure a Member States shall ensure a Member States shall ensure
GREEN
regular dialogue between
regular dialogue between
consult rightholders,
representative users' and
representative users' and
collective management
Member States shall
consult
rightholders' organisations,
rightholders' organisations,
organisations and cultural rightholders, collective
and any other relevant
and any other relevant
heritage institutions in
management organisations and
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stakeholder organisations, to, stakeholder organisations, to,
each sector before
cultural heritage institutions in
on a sector-specific basis,
on a sector-specific basis,
establishing specific
each sector before establishing
foster the relevance and
foster the relevance and
requirements pursuant to
specific requirements pursuant
usability of the licensing
usability of the licensing
Article 7(2), and encourage to Article 7(2), and encourage
mechanisms referred to in
mechanisms referred to in
a regular dialogue between
a regular dialogue between
Article 7(1), ensure the
Article 7(1)
and the
representative users' and
representative users' and
effectiveness of the
exception referred to in
rightholders' organisations,
rightholders' organisations,
safeguards for rightholders
Article 7(1a), ensure the
including collective
including collective
referred to in this Chapter,
effectiveness of the
management
management organisations,
notably as regards publicity
safeguards for rightholders
organisations, and any other and any other relevant
measures, and, where
referred to in this Chapter,
relevant stakeholder
stakeholder organisations, on a
applicable, assist in the
notably as regards publicity
organisations, to, on a
sector-specific basis, to
foster
establishment of the
measures, and, where
sector-specific basis,
to
the relevance and usability of
requirements referred to in
applicable, assist in the
foster the relevance and
the licensing mechanisms
the second subparagraph of
establishment of the
usability of the licensing
referred to in Article 7(1) and
Article 7(2).
requirements referred to in
mechanisms referred to in
to ensure the effectiveness of
the second subparagraph of
Article 7(1),
) and to ensure
the safeguards for rightholders
Article 7(2).
the effectiveness of the
referred to in this Chapter.
safeguards for rightholders
referred to in this Chapter,
notably as regards publicity
measures, and, where
[provisionally agreed at
applicable, assist in the
Trilogue 26/11/2018]
establishment of the
requirements referred to in
the second subparagraph of
Article 7(2)
.
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191.
CHAPTER 1a
CHAPTER 1a
Measures to facilitate
Measures to facilitate
collective licensing
collective licensing
192.
Art. 9a, title
Article 9a
Article 9a
Collective licensing with an
Collective licensing with an
extended effect
extended effect
[Article 9a in principle
provisionally agreed; final
agreement depending on final
wording with possible
technical clarifications from
COM]
193.
Art. 9a, para
1.
Member States may
1.
Member States may
1
provide, as far as the use
provide, as far as the use
within their national
within their national territory
territory is concerned and
is concerned and subject to
subject to safeguards
safeguards provided for in this
provided for in this
Article, that when a collective
Article, that when a
management organisation, in
collective management
accordance with its mandates
organisation, in
from rightholders, enters into a
accordance with its
licensing agreement for the
mandates from
exploitation of works or other
rightholders, enters into a
subject-matter such an
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licensing agreement for the agreement may be extended to
exploitation of works or
apply to the rights of
other subject-matter such
rightholders who have not
an agreement may be
authorised the organisation to
extended to apply to the
represent them by way of
rights of rightholders who
assignment, licence or any
have not authorised the
other contractual arrangement;
organisation to represent
or, with respect to such an
them by way of
agreement, the organisation
assignment, licence or any
has a legal mandate or is
other contractual
presumed to represent
arrangement; or, with
rightholders who have not
respect to such an
authorised the organisation
agreement, the
accordingly.
organisation has a legal
mandate or is presumed to
represent rightholders who
have not authorised the
[see comment in row 192]
organisation accordingly.
194.
Art. 9a, para
2.
Member States shall
2.
Member States shall
2
ensure that the licensing
ensure that the licensing
mechanism referred to in
mechanism referred to in
paragraph 1 is only
paragraph 1 is only applied
applied within well-defined within well-defined areas of
areas of use where
use where obtaining
obtaining authorisations
authorisations from
from rightholders on an
rightholders on an individual
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individual basis is typically basis is typically onerous and
onerous and impractical to impractical to a degree that
a degree that makes the
makes the required licensing
required licensing
transaction unlikely due to the
transaction unlikely due to nature of the use or of the
the nature of the use or of
types of works or other
the types of works or other subject-matter concerned and
subject-matter concerned
that such mechanism
and that such mechanism
safeguards the legitimate
safeguards the legitimate
interests of rightholders.
interests of rightholders.
[see comment in row 192]
195.
Art. 9a, para
3.
The safeguards
3.
The safeguards referred
3
referred to in paragraph 1 to in paragraph 1 must ensure
must ensure that:
that:
[see comment in row 192]
196.
Art. 9a, para
(a) the organisation is,
(a) the organisation is, on
3, point (a)
on the basis of mandates
the basis of mandates from
from rightholders,
rightholders, sufficiently
sufficiently representative
representative of rightholders
of rightholders in the
in the relevant type of works
relevant type of works or
or other subject-matter and of
other subject-matter and
the rights which are the subject
of the rights which are the
of the licence for the relevant
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subject of the licence for
Member State;
the relevant Member
State;
[see comment in row 192]
197.
Art. 9a, para
(b) equal treatment is
(b) equal treatment is
3, point (b)
guaranteed to all
guaranteed to all rightholders
rightholders in relation to
in relation to the terms of the
the terms of the licence;
licence;
[see comment in row 192]
198.
Art. 9a, para
(c) rightholders who
(c) rightholders who have
3, point (c)
have not authorised the
not authorised the organisation
organisation operating the operating the licence may at
licence may at any time
any time easily and effectively
easily and effectively
exclude their works or other
exclude their works or
subject-matter from the
other subject-matter from
licensing mechanism
the licensing mechanism
established in accordance with
established in accordance
this Article;
with this Article;
[see comment in row 192]
199.
Art. 9a, para
(d) appropriate publicity (d) appropriate publicity
3, point (d)
measures are taken to raise measures are taken to raise the
the awareness of
awareness of rightholders
rightholders regarding the regarding the possibility for
possibility for
organisations to license works
organisations to license
or other subject-matter and the
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works or other subject-
licensing taking place in
matter and the licensing
accordance with this Article,
taking place in accordance and the possibilities of
with this Article, and the
rightholders referred to in
possibilities of rightholders point (c) starting from a
referred to in point (c)
reasonable period before the
starting from a reasonable works or other subject-matter
period before the works or are used under the licence.
other subject-matter are
Publicity measures should be
used under the licence.
effective without the need to
Publicity measures should
inform each rightholder
be effective without the
individually.
need to inform each
rightholder individually.
[see comment in row 192]
200.
Art. 9a, para
4.
The rules provided
4.
The rules provided for in
4
for in this Article are
this Article are without
without prejudice to the
prejudice to the application of
application of collective
collective licensing
licensing mechanisms with mechanisms with an extended
an extended effect in
effect in conformity with other
conformity with other
provisions of Union law,
provisions of Union law,
including those which allow
including those which
exceptions or limitations, and
allow exceptions or
shall not apply to mandatory
limitations, and shall not
collective management of
apply to mandatory
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collective management of
rights.
rights.
[see comment in row 192]
201.
Art. 9a, para
5.
Where the law of a
5.
Where the law of a
5
Member State provides for Member State provides for a
a licensing mechanism in
licensing mechanism in
accordance with this
accordance with this Article,
Article, the Member State
the Member State concerned
concerned shall inform the shall inform the Commission
Commission about the
about the scope of that law,
scope of that law, purposes purposes and types of licences
and types of licences that
that may be introduced under
may be introduced under
that law as well as contact
that law as well as contact
details for organisations
details for organisations
issuing licences in accordance
issuing licences in
with the mechanism in
accordance with the
paragraph 1. The Commission
mechanism in paragraph
shall publish this information.
1. The Commission shall
publish this information.
[see comment in row 192]
202.
Art. 9a, para
6.
Based on the
6. Based on the information
6
information received
received pursuant to paragraph
pursuant to paragraph 5
5 and on the discussions in the
and on the discussions in
contact committee referred to
the contact committee
in Article 12(3) of Directive
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referred to in Article 12(3) 2001/29/EC, the Commission
of Directive 2001/29/EC,
shall, by
10 April 2021,
the Commission shall, by
submit to the European
31 December 2020, submit Parliament and to the Council
to the European
a report on the use of such
Parliament and to the
mechanisms referred to in
Council a report on the use paragraph 1 in the EU and
of such mechanisms
their impact on licensing and
referred to in paragraph 1 rightholders. The
in the EU and their impact Commission’s report shall be
on licensing and
accompanied, if appropriate,
rightholders. The
by a legislative proposal,
Commission’s report shall including as regards the cross-
be accompanied, if
border effect of such national
appropriate, by a
schemes.
legislative proposal,
including as regards
[see comment in row 192]
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
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-
Access to and availability of
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on-demand platforms
on-demand platforms
on-demand platforms
audiovisual works on video-
on-demand platforms
204.
Art. 10, title
Article 10
Article 10
Article 10
Article 10
Negotiation mechanism
Negotiation mechanism
Negotiation mechanism
Negotiation mechanism
205.
Art. 10, sub-
Member States shall ensure
Member States shall ensure
Member States shall ensure
GREEN
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
Member States shall ensure
the purpose of making
the purpose of making
related to the licensing of
that parties facing difficulties
available audiovisual works
available audiovisual works
rights when seeking to
related to the licensing of
on video-on-demand
on video-on-demand
conclude an agreement for
rights when seeking to
platforms face difficulties
platforms face difficulties
the purpose of making
conclude an agreement for the
relating to the licensing of
relating to the licensing of
available audiovisual works
purpose of making available
rights, they may rely on the
audiovisual rights, they may on video-on-demand
audiovisual works on video-
assistance of an impartial
rely on the assistance of an
platforms face difficulties
on-demand services, may rely
body with relevant
impartial body with relevant relating to the licensing of
on the assistance of an
experience. That body shall
experience. That body
The
rights, they
services, may
impartial body or of mediators.
provide assistance with
impartial body created or
rely on the assistance of an
The
impartial body
created
negotiation and help reach
designated by the Member
impartial body with relevant
or designated by the
agreements.
State for the purpose of this experience. That
or of
Member State for the
Article shall provide
mediators. The body
or
purpose of this Article or
assistance
to the parties with
mediators shall provide
mediators shall provide
negotiation and help
them to assistance
to the parties
assistance to the parties with
reach agreement.
with negotiation
their
their negotiation
s and help
negotiations and help
them
them reach agreements,
reach agreements
, including, including, where appropriate,
where appropriate, by
by submitting proposals to the
submitting proposals to the
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parties.
parties.
[provisionally agreed at
Trilogue 26/11/2018]
206.
Art. 10, sub-
No later than [date
No later than [date
No later than [date
GREEN
para 2
mentioned in Article 21(1)]
mentioned in Article 21(1)]
mentioned in Article 21(1)]
Member States shall notify
Member States shall
notify
Member States shall notify
Member States shall notify to
to the Commission the body
to
inform the Commission
of to the Commission the body
the Commission the body or
referred to in paragraph 1.
the body referred to in
or mediators referred to in
mediators referred to in
paragraph 1.
they create or
paragraph 1
no later than
paragraph 1 no later than [date
designate pursuant to the
[date mentioned in Article
mentioned in Article 21(1)]. In
first paragraph.
21(1)]. In cases where
cases where Member States
Member States have
have chosen to rely on
chosen to rely on
mediation, the notification to
mediation, the notification
the Commission shall at least
to the Commission shall at include, when available, the
least include, when
source where relevant
available, the source where information on the entrusted
relevant information on
mediators can be found.
the entrusted mediators
can be found.
[provisionally agreed at
Trilogue 26/11/2018]
207.
Art. 10, sub-
To encourage the
GREEN
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para 3
availability of audiovisual
[provisionally agreed at
works on video-on-demand
Trilogue on 26/11/2018 to
platforms, Member States
insert part of the EP mandate
shall foster dialogue
of this row into a recital (not
between representative
in Article) along the following
organisations of authors,
lines: Member States should
producers, video-on-
encourage dialogue between
demand platforms and other
representative organisations,
relevant stakeholders.
without it being an obligation
for Member States]
208.
CHAPTER 2a
Deleted
Access to Union
publications
[the Presidency's
understanding of the outcome
of the trilogue on 26/11/2018
is that the EP acepted to
remove Article 10a from the
Directive]
209.
Art. 10a, title
Article 10 a
Deleted
Union Legal Deposit
[see comment in row 208]
210.
Art. 10a, para
1.
Any electronic
Deleted
1
publication dealing with
Union-related matters such
[see comment in row 208]
as Union law, Union history
and integration, Union
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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
Deleted
2
Parliament Library shall be
entitled to delivery, free of
[see comment in row 208]
charge, of one copy of every
publication referred to in
paragraph 1.
212.
Art. 10a, para
3.
The obligation set out
Deleted
3
in paragraph 1 shall apply
to publishers, printers and
[see comment in row 208]
importers of publications
for the works they publish,
print or import in the
Union.
213.
Art. 10a, para
4.
From the day of the
Deleted
4
delivery to the European
Parliament Library, the
[see comment in row 208]
publications referred to in
paragraph 1 shall become
part of the European
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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
Deleted
5
adopt acts to specify the
modalities relating to the
[see comment in row 208]
delivery to the European
Parliament Library of
publications referred to in
paragraph 1.
215.
TITLE IV
TITLE IV
TITLE IV
TITLE IV
MEASURES TO ACHIEVE MEASURES TO ACHIEVE MEASURES TO ACHIEVE MEASURES TO ACHIEVE A
A WELL-FUNCTIONING
A WELL-FUNCTIONING
A WELL-FUNCTIONING
WELL-FUNCTIONING
MARKETPLACE FOR
MARKETPLACE FOR
MARKETPLACE FOR
MARKETPLACE FOR
COPYRIGHT
COPYRIGHT
COPYRIGHT
COPYRIGHT
216.
CHAPTER 1
CHAPTER 1
CHAPTER 1
CHAPTER 1
Rights in publications
Rights in publications
Rights in publications
Rights in publications
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217.
Art. 11, title
Article 11
Article 11
Article 11
[To be further discussed at
Protection of press
Protection of press
Protection of press
political level;
publications concerning
publications concerning
publications concerning
digital uses
digital uses
digitalonline uses
Preparatory work to be done
at technical level]
218.
Art. 11, para
1.
Member States shall
1.
Member States shall
1.
Member States shall
1
provide publishers of press
provide publishers of press
provide publishers of press
publications with the rights
publications with the rights
publications
established in
provided for in Article 2 and provided for in Article 2 and
a 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
2 and Article 3(2) of
use of their press
may obtain fair and
Directive 2001/29/EC for
publications.
proportionate remuneration the digital
online use of their
for the digital use of their
press publications
by
press publications
by
information society service
information society service
providers.
providers.
219.
Art. 11, para
The rights referred to in
1, sub-para 2
the first subparagraph
shall not apply in respect
of uses of insubstantial
parts of a press
publication. Member
States shall be free to
determine the
insubstantial nature of
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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.
The rights referred to
2.
The rights referred to
2.
The rights referred to
2
in paragraph 1 shall leave
in paragraph 1shall leave
in paragraph 1 shall leave
intact and shall in no way
intact and shall in no way
intact and shall in no way
affect any rights provided for affect any rights provided for affect any rights provided for
in Union law to authors and
in Union law to authors and
in Union law to authors and
other rightholders, in respect other rightholders, in respect other rightholders, in respect
of the works and other
of the works and other
of the works and other
subject-matter incorporated
subject-matter incorporated
subject-matter incorporated
in a press publication. Such
in a press publication. Such
in a press publication.
rights may not be invoked
rights may not be invoked
Such
The rights
referred to
against those authors and
against those authors and
in paragraph 1 may not be
other rightholders and, in
other rightholders and, in
invoked against those
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particular, may not deprive
particular, may not deprive
authors and other
them of their right to exploit them of their right to exploit rightholders and, in
their works and other
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
which they are incorporated. which they are incorporated. subject-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
has expired.
223.
Art. 11, para
2a. The rights referred to
in paragraph 1 shall not
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2a
extend to mere hyperlinks
which are accompanied by
individual words.
224.
Art. 11, para
3.
Articles 5 to 8 of
3.
Articles 5 to 8 of
3.
Articles 5 to 8 of
3
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.
The rights referred to
4.
The rights referred to
4.
The rights referred to
4
in paragraph 1 shall expire
in paragraph 1 shall expire
in paragraph 1 shall expire
20 years after the publication 20
5 years after the
20 years
1 year after the
of the press publication. This publication of the press
publication of the press
term shall be calculated from publication. This term shall
publication. This term shall
the first day of January of
be calculated from the first
be calculated from the first
the year following the date
day of January of the year
day of January of the year
of publication.
following the date of
following the date o
publication.
The right
publication.
referred to in paragraph 1
shall not apply with
retroactive effect.
226.
Art. 11, para
4a.
Member States shall
4a
ensure that authors receive
an appropriate share of the
additional revenues press
publishers receive for the
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use of a press publication by
information society service
providers
227.
Art. 11, para
5. Paragraph 1 shall not
5
apply to press publications
first published before
[entry into force of the
Directive].
228.
Art, 12, title
Article 12
Article 12
Article 12
Article 12
Claims to fair compensation 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
[discussed at Trilogue 26/
para 1 (EP)/
that where an author has
compensation-sharing
that where an author has
11/2018; COM to provide
Art. 12,
transferred or licensed a
systems between authors
transferred or licensed a
recital language to address
introductory
right to a publisher, such a
and publishers for
right to a publisher, such a
EP's concerns regarding "cut
part
transfer or a licence
exceptions and limitations
transfer or a licence
off date"]
(Council)]
constitutes a sufficient legal
may provide that where an
constitutes a sufficient legal
basis for the publisher to
author has transferred or
basis for the publisher to
[to be further discussed at
claim a share of the
licensed a right to a
claim
be entitled to a share
political level]
compensation for the uses of publisher, such a transfer or
of
:
the work made under an
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
proposal was moved to new
uses of the work made under
point (a) (see row 230)] an exception or limitation to
the transferred or licensed
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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
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limitations to copyright,
such as extended collective
licensing schemes, or
concerning remuneration
rights on the basis of
national law.
233.
CHAPTER 1a
Deleted
Protection of sport event
organizers
[the Presidency's
understanding of the outcome
of the trilogue on 26/11/2018
is that the EP acepted to
remove Article 12a from the
Directive]
234.
Art. 12a, title
Article 12a
Deleted
Protection of sport event
organizers
[see comments in row 233]
235.
Art. 12a
Member States shall provide
Deleted
sport event organizers with
the rights provided for in
[see comments in row 233]
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
CHAPTER 2
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Certain uses of protected
Certain uses of protected
Certain uses of protected
Certain uses of protected
content by online services
content by online services
content by online services
content by online services
237.
Art. 13, title
Article 13
Article 13
Article 13
[To be further discussed at
Use of protected content by
Use of protected content by
political level;
information society service
information society online
Use of protected content by
providers storing and giving
content sharing service
information society
online
Preparatory work started at
access to large amounts of
providers storing and giving
content sharing service
technical level]
works and other subject-
access to large amounts of
providers storing
matter uploaded by their
works and other subject-
users
matter uploaded by their
users
238.
Art. 13, para
1.
Information society
1.
Without prejudice to
1.
Member States shall
1
service providers that store
Article 3(1) and (2) of
provide that an online
and provide to the public
Directive 2001/29/EC,
content sharing service
access to large amounts of
online content sharing
provider performs an act
works or other subject-
Information society service
of communication to the
matter uploaded by their
providers that store and
public or an act of making
users shall, in cooperation
provide
perform an act of
available to the public
with rightholders, take
communication to the public
when it gives the public
measures to ensure the
access to large amounts of
access to copyright
functioning of agreements
works or other subject-
protected works or other
concluded with rightholders
matter uploaded by their
protected subject matter
for the use of their works or
users
. They shall in
uploaded by its users.
other subject-matter or to
cooperation with
prevent the availability on
rightholders, take measures
An online content sharing
their services of works or
to ensure the functioning of
service provider shall
other subject-matter
agreements concluded with
obtain an authorisation
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identified by rightholders
rightholders for the use of
from the rightholders
through the cooperation with their works or other subject-
referred to in Article 3(1)
the service providers. Those
matter or to prevent the
and giving access to large
measures, such as the use of
availability on their services
amounts of
(2) of Directive
effective content recognition of works or other subject-
2001/29/EC in order to
technologies, shall be
matter identified by
communicate or make
appropriate and
rightholders through the
available to the public
proportionate. The service
cooperation with the service
works or other subject
providers shall provide
providers. Those measures,
matter. Where no such
rightholders with adequate
such as the use of effective
authorisation has been
information on the
content recognition
obtained, the service
functioning and the
technologies, shall be
provider shall prevent the
deployment of the measures,
therefore conclude fair and availability on its service of
as well as, when relevant,
appropriate and
those works and other
adequate reporting on the
proportionate. The service
subject-matter uploaded by
recognition and use of the
providers shall provide
matter, including through
works and other subject-
rightholders with adequate
the application of
matter.
information on the
measures referred to in
functioning and the
paragraph 4. This
deployment of the measures,
subparagraph shall apply
as well as, when relevant,
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
Member States shall
agreements with right
provide that when an
holders.
authorisation has been
obtained, including via a
licensing agreement, by an
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online content sharing
service provider, this
authorisation shall also
cover acts of uploading by
the users of the service
falling within Article 3 of
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. Member States shall
2 (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
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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,
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
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preventing the availability
of non-infringing works or
other protected subject
matter, including those
covered by an exception or
limitation to copyright.
241.
Art. 13, para
2.
Member States shall
2b. Members States shall
[Paragraph 2 of the COM
2 / para 2b
ensure that the service
ensure that online content
proposal was moved to new
(EP)
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
expeditious complaints and
available to users in case of
redress mechanisms that
disputes over the application
are available to users in
of the measures referred to
case the cooperation
in paragraph 1.
referred to in 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
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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
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.
Member States shall
3.
As of [date of entry
[See new paragraph 8 of
[to be further discussed]
3 (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
providers and rightholders
facilitate where appropriate,
through stakeholder
the cooperation
organise
dialogues to define best
dialogues between the
practices, such as
information society service
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appropriate and
providers and rightholders
proportionate content
through stakeholder
recognition technologies,
dialogues
stakeholders to
taking into account, among
harmonise and to define
others, the nature of the
best practices, such as
services, the availability of
appropriate and
the technologies and their
proportionate content
effectiveness in light of
recognition technologies,
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
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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.
When an online
[to be further discussed at
3 (Council)
content sharing service
political level]
provider performs an act
of 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.
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244.
Art. 13, para
4.
In the absence of the
[to be further discussed at
4,
authorisation referred to in political level]
introductory
the second subparagraph
part
of 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
to the public within the
meaning of this Article
when:
245.
Art. 13, para
(a) it demonstrates that
[to be further discussed at
4, point (a)
it has made best efforts to
political level]
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
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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
[to be further discussed at
4, point (b)
rightholders of works or
political level]
other subject matter, it has
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
[to be further discussed at
5,
referred to in point (a) of
political level]
introductory
paragraph 4 shall be
part
effective and
proportionate, taking into
account, among other
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factors:
248.
Art. 13, para
(a) the nature and size of [to be further discussed at
5, point (a)
the services, in particular
political level]
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
audience;
249.
Art. 13, para
(b) the amount and the
[to be further discussed at
5, point (b)
type of works or other
political level]
subject matter uploaded
by the users of the
services;
250.
Art. 13, para
(c) the availability and
[to be further discussed at
5, point (c)
costs
of the measures as
political level]
well as their effectiveness
in light of technological
developments in line with
the industry best practice
referred to in paragraph 8.
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251.
Art. 13, para
6.
Member States shall
[to be further discussed at
6
ensure that online content
political level]
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
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.
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252.
Art. 13, para
7.
Member States shall
[to be further discussed at
7
ensure that
the measures
political level]
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
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
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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.
The Commission and [to be further discussed at
8
the Member States shall
political level]
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
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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
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
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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
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
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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
ACHIEVE A WELL-
FUNCTIONING
MARKETPLACE FOR
COPYRIGHT
261.
CHAPTER 3
CHAPTER 3
CHAPTER 3
[to be discussed at political
Fair remuneration in
Fair remuneration in
Fair remuneration in
level]
contracts of authors and
contracts of authors and
exploitation contracts of
performers
performers
authors and performers
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262.
Art. -14, title
Article -14
[Article -14 to be further
discussed at political level]
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 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.
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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
Article 14
Transparency obligation
Transparency obligation
Transparency obligation
Transparency obligation
268.
Art. 14, para
1.
Member States shall
1.
Member States shall
1.
Member States shall
1. Member States shall ensure
1
ensure that authors and
ensure that authors and
ensure that authors and
that authors and performers
performers receive on a
performers receive on a
performers receive on a
receive on a regular basis,
at
regular basis and taking into regular basis,
not less than
regular basis
, at least once a least once a year, and taking
account the specificities of
once a year , and taking into
year, and taking into
into account the specificities of
each sector, timely, adequate account the specificities of
account the specificities of
each sector [
and the relative
and sufficient information on each sector
and the relative
each sector, timely, adequate
importance of each individual
the exploitation of their
importance of each
and sufficient information
contribution], timely,
works and performances
individual contribution,
on the exploitation of their
[adequate and sufficient/
up to
from those to whom they
timely adequate and
works and performances
date, relevant and
have licensed or transferred
sufficient
, accurate, relevant from those to whom they
comprehensive information on
their rights, notably as
and comprehensive
have licensed or transferred
the exploitation of their works
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regards modes of
information on the
their rights
or their
and performances from those
exploitation, revenues
exploitation of their works
successors in title, notably
to whom they have licensed or
generated and remuneration
and performances from those as regards modes of
transferred their rights
or their
due.
to whom they have licensed
exploitation, revenues
successors in title, notably as
or transferred their rights,
generated and remuneration
regards modes of exploitation,
notably as regards modes of
due.
direct and indirect all(*)
exploitation
, direct and
revenues generated and
indirect revenues generated,
remuneration due.
and remuneration due.
[(*) subject to explicit
reference to 'merchandising'
as example of a possible form
of covered revenues in the
recitals (see recital (40a), row
92, and recital (42), row 95]
[yellow part depending
agreement on Article 14(3)]
269.
Art. 14, para
1a.
Member States shall
1a. Member States shall
[To be further discussed at
1a
ensure that where the
ensure that where the
political level, to be prepared
licensee or transferee of
rights referred to in
at TM]
rights of authors and
paragraph 1 have
performers subsequently
subsequently been licensed
licenses those rights to
to another party, authors
another party, such party
and performers may, at
shall share all information
their request, receive from
referred to in paragraph 1
those third parties
with the licensee or
additional information if
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transferee.
their first contractual
counterpart does not hold
all the 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
[to be discussed at Trilogue]
1a, sub-
transferee shall pass all the
para 2
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
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15 and 16a, may be subject
to a non-disclosure
agreement, for the purpose
of preserving fair
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.
The obligation in
2.
The obligation in
2.
The obligation in
GREEN
2
paragraph 1 shall be
paragraph 1 shall be
paragraph 1 shall be
proportionate and effective
proportionate and effective
proportionate and effective
2.
The obligation in
and shall ensure an
and shall ensure an
and shall ensure an
paragraph 1 shall be
appropriate level of
appropriate
a high level of
appropriate level of
proportionate and effective and
transparency in every sector. transparency in every sector. transparency in every sector. shall
to ensure an appropriate
a
However, in those cases
However, in those cases
However, in those
Member
high level of transparency in
where the administrative
where the administrative
States may provide that in every sector.
Member States
burden resulting from the
burden resulting from the
duly justified cases where
may provide that in duly
obligation would be
obligation would be
the administrative burden
justified cases where the
disproportionate in view of
disproportionate in view of
resulting from the obligation administrative burden resulting
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the revenues generated by
the revenues generated by
in paragraph 1 would
from the obligation
in
the exploitation of the work
the exploitation of the work
be
become disproportionate
paragraph 1 would be
become
or performance, Member
or performance, Member
in view of the revenues
disproportionate in view of the
States may adjust the
States may adjust the
generated by the exploitation revenues generated by the
obligation in paragraph 1,
obligation in paragraph 1,
of the work or performance, exploitation of the work or
provided that the obligation
provided that the obligation
Member States may adjust
performance, the obligation
is
remains effective and
remains effective and
the obligation in paragraph
limited to the
types and level
ensures an appropriate level
ensures an appropriate
a
1, provided that
is limited to of
information that can
of transparency.
high level of transparency.
the obligation remains
reasonably be expected in
effective
types and ensures
such cases.
an appropriate level of
transparency.
information
[provisionally agreed at
that can reasonably be
TTrilogue 26/11/2018]
expected in such cases.
272.
Art. 14, para
3.
Member States may
Deleted
3.
Member States may
3.
[
Council preference:
3
decide that the obligation in
decide that the obligation in
Member States may decide
paragraph 1 does not apply
paragraph 1 does not apply
that the obligation in
when the contribution of the
when the contribution of the paragraph 1 does not apply
author or performer is not
author or performer is not
when the contribution of the
significant having regard to
significant having regard to
author or performer is not
the overall work or
the overall work or
significant having regard to
performance.
performance.
the overall work or
performance.]
[EP compromise proposal:
Member States may decide
that in the case of authors
and
performers
whose
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contribution is not significant
having regard to the overall
work or performance the
obligation in paragraph 1
apply only on request of the
author or performer.]
[to be discussed at political
level]
273.
Art. 14, para
3a. Members States may GREEN
3a
provide that for
agreements subject to or
3a. Members States may
based on collective
provide that for agreements
bargaining agreements the subject to or based on
transparency rules of the
collective bargaining
relevant collective
agreements the transparency
bargaining agreement are
rules of the relevant collective
applicable provided that
bargaining agreement are
they meet the minimum
applicable provided that they
criteria laid down in the
are comparable to the
national provisions
obligations / meet the
adopted in conformity with minimum criteria laid down
the requirements of
in the national provisions
paragraphs 1 to 3.
adopted in conformity with
the requirements of
paragraphs 1 to 3.
[provisionally agreed at
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rilogue 26/11/2018]
274.
Art. 14, para
4.
Paragraph 1 shall not
4.
Paragraph 1 shall not
4.
Paragraph 1 shall not
GREEN
4
be applicable to entities
be applicable to entities
be applicable to
agreements
subject to the transparency
subject to the transparency
concluded by entities
4.
Paragraph 1 shall not be
obligations established by
obligations established by
subject to the transparency
applicable to a Agreements
Directive 2014/26/EU.
Directive 2014/26/EU
or to
obligations established by
concluded by entities defined
collective bargaining
defined in Article 3(a) and
in Article 3(a) and (b) of
agreements, where those
(b) of Directive 2014/26/EU.
Directive 2014/26/EU or by
obligations or agreements
or by other entities subject other entities subject to the
provide for transparency
to the national rules
national rules implementing
requirements comparable to implementing Directive
Directive 2014/26/EU shall
those referred to in
2014/26/EU.
not be subject to the
paragraph 2.
obligation laid down in
paragraph 1 when Article 18
of Directive 2014/26/EU is
applicable.[ aim of the
paragraph provisionally
agreed at Trilogue
26/11/2018/; actual text
provisionally agreed at TM
29/11/2018, together with
wording of recital 41, row 94
tbc at trilogue]
275.
Art. 15, title
Article 15
Article 15
Article 15
Article 15
Contract adjustment
Contract adjustment
Contract adjustment
Contract adjustment
mechanism
mechanism
mechanism
mechanism
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276.
Art. 15, [para Member States shall ensure
Member States shall ensure
, 1.
Member States shall
1. Member States shall ensure,
1 (Council)]
that authors and performers
in the absence of collective
ensure that authors and
in the absence of an
are entitled to request
bargaining agreements
performers are entitled to
applicable collective
additional, appropriate
providing for a comparable
request additional,
bargaining agreement
remuneration from the party
mechanism, that authors and appropriate remuneration
providing for a comparable
with whom they entered into performers
or any
from the party with whom
mechanism, that authors and
a contract for the
representative organisation
they entered into a contract
performers
or any
exploitation of the rights
acting on their behalf are
for the exploitation of the
[representatives]
when the remuneration
entitled to request
claim
rights
or their successors in [representative organisation
originally agreed is
additional
, appropriate
and
title, when the remuneration
acting [at the specific request
disproportionately low
fair remuneration from the
originally agreed is
turns out / on behalf] of one or more
compared to the subsequent
party with whom they
to be disproportionately low
authors or performers] are
relevant revenues and
entered into a contract for
compared to the subsequent
entitled to
claim additional,
benefits derived from the
the exploitation of the rights relevant revenues and
appropriate
and fair
exploitation of the works or
when the remuneration
benefits derived from the
remuneration from the party
performances.
originally agreed is
actual exploitation of the
with whom they entered into a
disproportionately low
works or performances.
contract for the exploitation of
compared to the subsequent
the rights or their successors in
relevant
direct or indirect
title, when the remuneration
revenues and benefits
originally agreed turns out to
derived from the exploitation
be disproportionately low
of the works or
compared to
all the subsequent
performances.
relevant
[direct or indirect] revenues and benefits derived
[See Council’s Article
from the exploitation of the
15(1a) (row277)]
works or performances.
[to be discussed further at
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political level;
Deletion of 'direct or indirect'
provisionally agreed at
Trilogue 26/11/2018: see
comment on Article 14(1), row
268]
277.
Art. 15, para
1a. Members States may [Article 15(1a) Council’s text
1a
provide that for
deleted/incorporated into
agreements subject to or
paragraph 1]
based on collective
bargaining agreements the [provisionally agreed at TM
rules of the relevant
tbc by trilogue]
collective bargaining
agreement for the
adjustment of
remuneration are
applicable instead of the
national provisions
implementing the contract
adjustment mechanism.
278.
Art. 15, para
2.
Paragraph 1 shall not [to be discussed at trilogue]
2
be applicable to
agreements concluded by
entities defined in Article
3(a) and (b) of Directive
2014/26/EU or by other
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entities subject to the
national rules
implementing Directive
2014/26/EU.
279.
Art. 16, title
Article 16
Article 16
Article 16
GREEN
Dispute resolution
Dispute resolution
mechanism
mechanism
Dispute resolution
Article 16
mechanismprocedure
Dispute resolution procedure
[provisionally agreed at
Trilogue 26/11/2018]
280.
Art. 16, [para Member States shall provide Member States shall provide
1.
Member States shall
GREEN
1 (Council)]
that disputes concerning the
that disputes concerning the
provide that disputes
transparency obligation
transparency obligation
concerning the transparency Member States shall provide
under Article 14 and the
under Article 14 and the
obligation under Article 14
that disputes concerning the
contract adjustment
contract adjustment
and the contract adjustment
transparency obligation under
mechanism under Article 15 mechanism under Article 15 mechanism under Article 15 Article 14 and the contract
may be submitted to a
may be submitted to a
may be submitted to a
adjustment mechanism under
voluntary, alternative dispute voluntary, alternative dispute voluntary, alternative
Article 15 may be submitted to
resolution procedure.
resolution procedure.
dispute resolution procedure.
a voluntary, alternative dispute
Member States shall ensure
resolution procedure.
Member
that representative
States shall ensure that
organisations of authors
representative organisations
and performers may initiate
of authors and performers
such procedures at the
may initiate such procedures
request of one or more
at the specific request of one
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authors and performers.
or more authors and
performers.
[See Council’s Article 16(2)
(row 281)]
[provisionally agreed at
Trilogue 26/11/2018]
281.
Art. 16, para
[See Parliament’s Article 16 2.
Member States shall
[Article 16(2) Council’s text
2
last phrase (row 280)]
ensure that representative
deleted/incorporated into
organisations of authors
paragraph 1]
and performers, including
collective management
[provisionally agreed at
organisations, may initiate Trilogue 26/11/2018] such disputes on behalf of
one or more authors and
performers at their
request.
282.
Art. 16a
Article 16a
GREEN
(Council),
title
Contractual provisions
Article 16a
Contractual Common
provisions
[provisionally agreed at
Trilogue 26/11/2018]
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283.
Art. 16a
Member States shall
GREEN
(Council)
ensure that any
contractual provision
Member States shall ensure
which prevents the
that any contractual
compliance with the
provision which prevents the
provisions in Articles 14
compliance with the
and 15 of this Directive
provisions in Articles 14 and
shall be unenforceable in
15 of this Chapter(*)
relation to authors and
Directive shall be
performers.
unenforceable in relation to
authors and performers.
[(*) 'Chapter' refers to Articles
14,15 and 16, ie the provisions
of the initial Commission
proposal]
[provisionally agreed at
Trilogue 26/11/2018]
284.
Art. 16a
Article 16 a
[Article 16a to be further
(EP), title
discussed at political level;
Right of revocation
Preparatory work to be done
at technical level]
285.
Art. 16a
1.
Member States shall
(EP),
ensure that where an author
or a performer has licensed
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para 1
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 different
sectors and works and
anticipated exploitation
period, notably provide for
time limits for the right of
revocation.
286.
Art. 16a
2.
The right of
(EP),
revocation provided for in
para 2
paragraph 1 may be
exercised only after a
reasonable time from the
conclusion of the licence or
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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
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.
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287.
Art. 16a
3.
Paragraphs 1 and 2
(EP),
shall not apply if the non-
para 3
exercise of the rights is
predominantly due to
circumstances which the
author or the performer can
be reasonably expected to
remedy.
288.
Art. 16a
4.
Contractual or other
(EP),
arrangements derogating
para 4
from the right of revocation
shall be lawful only if
concluded by means of an
agreement which is based
on a collective bargaining
agreement.
289.
TITLE V
TITLE V
TITLE V
TITLE V
FINAL PROVISIONS
FINAL PROVISIONS
FINAL PROVISIONS
FINAL PROVISIONS
290.
Art. 17,
Article 17
Article 17
Article 17
Article 17
title
Amendments to other
Amendments to other
Amendments to other
Amendments to other
directives
directives
directives
directives
291.
Art. 17, para
1.
Directive 96/9/EC is
1.
Directive 96/9/EC is
1.
Directive 96/9/EC is
1.
Directive 96/9/EC is
1
amended as follows:
amended as follows:
amended as follows:
amended as follows:
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292.
Art. 17, para
(a) In Article 6(2), point
(a) In Article 6(2), point
(a) In Article 6(2), point (a) In Article 6(2), point (b)
1, point (a)
(b) is replaced by the
(b) is replaced by the
(b) is replaced by the is replaced by the following:
following:
following:
following:
293.
Art. 17, para
"(b) where there is use
"(b) where there is use
"(b) where there is use for
GREEN
1, point (a)
for the sole purpose of
for the sole purpose of
the sole purpose of
illustration for teaching
illustration for teaching
illustration for teaching or
"(b) where there is use for
or scientific research, as
or scientific research, as
scientific research, as
the sole purpose of
long as the source is
long as the source is
long as the source is
illustration for teaching or
indicated and to the
indicated and to the
indicated and to the
scientific research, as long
extent justified by the
extent justified by the
extent justified by the
as the source is indicated
non-commercial purpose
non-commercial
non-commercial purpose
and to the extent justified
to be achieved, without
purpose to be achieved,
to be achieved, without
by the non-commercial
prejudice to the
without prejudice to the
prejudice to the
purpose to be achieved,
exceptions and the
exceptions and the
exceptions and the
without prejudice to the
limitation provided for in
limitation provided for
limitation provided for in
exceptions and the
Directive [this
in Directive [this
Articles 3 and 4 of
limitation provided for in
Directive];"
Directive];"
Directive [this
Articles 3 and 4 of
Directive];"
Directive [this Directive];"
[ provisionally agreed at
technical meeting of
13.11.2018]
294.
Art. 17, para
(b) In Article 9, point (b)
(b) In Article 9, point (b)
(b) In Article 9, point (b) (b) In Article 9, point (b) is
1, point (b)
is replaced by the following: is replaced by the following: is 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
GREEN
extraction for the
extraction for the
extraction for the
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1, point (b)
purposes of illustration
purposes of illustration
purposes of illustration
"(b) in the case of extraction
for teaching or scientific
for teaching or scientific
for teaching or scientific
for the purposes of illustration
research, as long as the
research, as long as the
research, as long as the
for teaching or scientific
source is indicated and to
source is indicated and to
source is indicated and to research, as long as the source
the extent justified by the
the extent justified by the
the extent justified by the is indicated and to the extent
non-commercial purpose
non-commercial purpose
non-commercial purpose
justified by the non-
to be achieved, without
to be achieved, without
to be achieved, without
commercial purpose to be
prejudice to the
prejudice to the
prejudice to the
achieved, without prejudice to
exceptions and the
exceptions and the
exceptions and the
the exceptions and the
limitation provided for in
limitation provided for in
limitation provided for in limitation provided for in
Directive [this
Directive [this
Articles 3 and 4 of
Articles 3 and 4 of Directive
Directive];"
Directive];"
Directive [this
[this Directive];"
Directive];"
[provisionally agreed at
technical meeting of
13.11.2018]
296.
Art. 17, para
2.
Directive 2001/29/EC
2.
Directive 2001/29/EC
2.
Directive 2001/29/EC 2.
Directive 2001/29/EC is
2
is amended as follows:
is amended as follows:
is amended as follows:
amended as follows:
297.
Art. 17, para
(a) In Article 5(2), point
(a) In Article 5(2), point
(a) In Article 5(2), point (a) In Article 5(2), point (c)
2, point (a)
(c) is replaced by the
(c) is replaced by the
(c) is replaced by the is replaced by the following:
following:
following:
following:
298.
Art. 17, para
"(c) in respect of specific
"(c) in respect of specific
"(c) in respect of specific
GREEN
2, point (a)
acts of reproduction made
acts of reproduction made
acts of reproduction made
by publicly accessible
by publicly accessible
by publicly accessible
"(c) in respect of specific
libraries, educational
libraries, educational
libraries, educational
acts of reproduction made
by publicly accessible
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establishments or
establishments or
establishments or
libraries, educational
museums, or by archives,
museums, or by archives,
museums, or by archives,
establishments or museums,
which are not for direct or
which are not for direct or
which are not for direct or
or by archives, which are
indirect economic or
indirect economic or
indirect economic or
not for direct or indirect
commercial advantage,
commercial advantage,
commercial advantage,
economic or commercial
without prejudice to the
without prejudice to the
without prejudice to the
advantage, without
exceptions and the
exceptions and the
exceptions and the
prejudice to the
exception
limitation provided for in
limitation provided for in
limitation
exception
and the limitations provided
Directive [this Directive];"
Directive [this
provided for in
Article 5
for in
Article 5 of Directive
Directive];"
of Directive [this
[this Directive];"
Directive];"
[provisionally agreed at
technical meeting of
13.11.2018]
299.
Art. 17, para
(b) In Article 5(3), point
(b) In Article 5(3), point
(b) In Article 5(3), point (b) In Article 5(3), point (a)
2, point (b)
(a) is replaced by the
(a) is replaced by the
(a) is replaced by the is replaced by the following:
following:
following:
following:
300.
Art. 17, para
"(a) use for the sole
"(a) use for the sole
"(a) use for the sole
GREEN
2, point (b)
purpose of illustration for
purpose of illustration for
purpose of illustration for
teaching or scientific
teaching or scientific
teaching or scientific
"(a) use for the sole purpose
research, as long as the
research, as long as the
research, as long as the
of illustration for teaching
source, including the
source, including the
source, including the
or scientific research, as
author's name, is indicated,
author's name, is indicated,
author's name, is
long as the source,
unless this turns out to be
unless this turns out to be
indicated, unless this
including the author's
impossible and to the
impossible and to the
turns out to be impossible
name, is indicated, unless
extent justified by the non-
extent justified by the non-
and to the extent justified
this turns out to be
commercial purpose to be
commercial purpose to be
by the non-commercial
impossible and to the extent
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achieved, without
achieved, without prejudice
purpose to be achieved,
justified by the non-
prejudice to the exceptions
to the exceptions and the
without prejudice to the
commercial purpose to be
and the limitation provided
limitation provided for in
exceptions and the
achieved, without prejudice
for in Directive [this
Directive [this Directive];"
limitation provided for in
to the exceptions and the
Directive];"
Articles 3 and 4 of
limitation provided for in
Directive [this
Articles 3 and 4 of
Directive];"
Directive [this Directive];"
[provisionally agreed at
technical meeting of
13.11.2018]
301.
Art. 17, para
(c) In Article 12(4), the
(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:
following points are added:
302.
Art. 17, para
"(e) to examine the impact
"(e) to examine the impact
"(e) to examine the impact "(e) to examine the impact of
2, point (c)
of the transposition of
of the transposition of
of the transposition of
the transposition of Directive
Directive [this Directive]
Directive [this Directive]
Directive [this Directive]
[this Directive] on the
on the functioning of the
on the functioning of the
on the functioning of the
functioning of the internal
internal market and to
internal market and to
internal market and to
market and to highlight any
highlight any transposition
highlight any transposition
highlight any transposition transposition difficulties;
difficulties;
difficulties;
difficulties;
303.
Art. 17, para
(f) to facilitate the
(f) to facilitate the
(f) to facilitate the
(f) to facilitate the exchange of
2, point (c)
exchange of information
exchange of information on
exchange of information
information on the relevant
on the relevant
the relevant developments
on the relevant
developments in legislation
developments in legislation
in legislation and case law
developments in
and case law as well as on the
and case law as well as on
as well as on the practical
legislation and case law as practical application of the
the practical application of
application of the measures
well as on the practical
measures taken by Member
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the measures taken by
taken by Member States to
application of the
States to implement Directive
Member States to
implement Directive [this
measures taken by
[this Directive];
implement Directive [this
Directive];
Member States to
Directive];
implement Directive [this
Directive];
304.
Art. 17, para
(g) to discuss any other
(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
questions arising from the
application of Directive
application of Directive
application of Directive
application of Directive [this
[this Directive]."
[this Directive]."
[this Directive]."
Directive]."
305.
Art. 17a, title
Article 17 a
GREEN
Article 17 a
306.
Art. 17a
Member States may adopt
GREEN
or maintain in force
broader provisions,
Member States may adopt or
compatible with the
maintain in force broader
exceptions and limitations
provisions, compatible with
existing in Union law, for
the exceptions and limitations
uses covered by the
set out in Directives 96/9/EC
exceptions or the limitation
and 2001/29/EC, for uses or
provided for in this
fields
covered
by
the
Directive.
exceptions
or
limitations
provided for in this Directive
and on condition that their
application does not adversely
affect nor circumvent the
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mandatory rules set out in this
Directive.
[provisional agreement at
trilogue 25/10/2018
/26/11/2018; a recital should
clarify that Article 17a does
not allow MS to not implement
the mandatory exceptions
under this Directive]
307.
Art. 18
Article 18
Article 18
Article 18
Article 18
Application in time
Application in time
Application in time
Application in time
308.
Art. 18, para
1.
This Directive shall
1.
This Directive shall
1.
This Directive shall
1.
This Directive shall
1
apply in respect of all works 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
and other subject-matter which
which are protected by the
which are protected by the
which are protected by the
are protected by the Member
Member States' legislation in Member States' legislation in Member States' legislation in States' legislation in the field
the field of copyright on or
the field of copyright on or
the field of copyright on or
of copyright on or after [the
after [the date mentioned in
after [the date mentioned in
after [the date mentioned in
date mentioned in Article
Article 21(1)].
Article 21(1)].
Article 21(1)].
21(1)].
309.
Art. 18, para
2.
The provisions of
Deleted
2.
[Deleted]
(Deleted)
2
Article 11 shall also apply to
press publications published
before [the date mentioned
in Article 21(1)].
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310.
Art. 18, para
3.
This Directive shall
3.
This Directive shall
3.
This Directive shall
3.
This Directive shall
3
apply without prejudice to
apply without prejudice to
apply without prejudice to
apply without prejudice to any
any acts concluded and
any acts concluded and
any acts concluded and
acts concluded and rights
rights acquired before [the
rights acquired before [the
rights acquired before [the
acquired before [the date
date mentioned in Article
date mentioned in Article
date mentioned in Article
mentioned in Article 21(1)].
21(1)].
21(1)].
21(1)].
311.
Art. 19, title
Article 19
Article 19
Article 19
Article 19
Transitional provision
Transitional provision
Transitional provision
Transitional provision
312.
Art. 19
Agreements for the licence
Agreements for the licence
Agreements for the licence
Agreements for the licence or
or transfer of rights of
or transfer of rights of
or transfer of rights of
transfer of rights of authors
authors and performers shall authors and performers shall authors and performers shall and performers shall be subject
be subject to the
be subject to the
be subject to the
to the transparency obligation
transparency obligation in
transparency obligation in
transparency obligation in
in Article 14 as from [one year
Article 14 as from [one year Article 14 as from [one year
Article 14 as from [one year after the date mentioned in
after the date mentioned in
after the date mentioned in
after the date mentioned in
Article 21(1)].
Article 21(1)].
Article 21(1)].
Article 21(1)].
313.
Art. 20, title
Article 20
Article 20
Article 20
Article 20
Protection of personal data
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
The processing of personal
data carried out within the
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
framework of this Directive
shall be carried out in
shall be carried out in
shall be carried out in
shall be carried out in
compliance with Directives
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.
95/46/EC and 2002/58/EC.
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315.
Art. 21, title
Article 21
Article 21
Article 21
Article 21
Transposition
Transposition
Transposition
Transposition
316.
Art. 21, para
1.
Member States shall
1.
Member States shall
1.
Member States shall
1.
Member States shall
1
bring into force the laws,
bring into force the laws,
bring into force the laws,
bring into force the laws,
regulations and
regulations and
regulations and
regulations and administrative
administrative provisions
administrative provisions
administrative provisions
provisions necessary to
necessary to comply with
necessary to comply with
necessary to comply with
comply with this Directive by
this Directive by [12 months this Directive by [12 months this Directive by [12
24
[
[12][24] months after entry
after entry into force] at the
after entry into force] at the
months after entry into
into force] at the latest. They
latest. They shall forthwith
latest. They shall forthwith
force] at the latest. They
shall forthwith communicate to
communicate to the
communicate to the
shall forthwith communicate the Commission the text of
Commission the text of those Commission the text of those to the Commission the text
those provisions.
provisions.
provisions.
of those provisions.
317.
Art. 21, para
When Member States adopt
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
those provisions, they shall
contain a reference to this
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 Directive or be accompanied
by such a reference on the
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
occasion of their official
publication. Member States
publication. Member States
publication. Member States
publication. Member States
shall determine how such
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.
reference is to be made.
318.
Art. 21, para
2.
Member States shall
2.
Member States shall
2.
Member States shall
2.
Member States shall
2
communicate to the
communicate to the
communicate to the
communicate to the
Commission the text of the
Commission the text of the
Commission the text of the
Commission the text of the
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main provisions of national
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
law which they adopt in the
field covered by this
field covered by this
field covered by this
field covered by this Directive.
Directive.
Directive.
Directive.
319.
Art. 22, title
Article 22
Article 22
Article 22
Article 22
Review
Review
Review
Review
320.
Art. 22, para
1.
No sooner than [five
1.
No sooner than [five
1.
No sooner than [five
1.
No sooner than [five
1
years after the date
years after the date
years after the date
years after the date mentioned
mentioned in Article 21(1)], mentioned in Article 21(1)], mentioned in Article 21(1)], in Article 21(1)], the
the Commission shall carry
the Commission shall carry
the Commission shall carry
Commission shall carry out a
out a review of this Directive out a review of this Directive out a review of this Directive review of this Directive and
and present a report on the
and present a report on the
and present a report on the
present a report on the main
main findings to the
main findings to the
main findings to the
findings to the European
European Parliament, the
European Parliament, the
European Parliament, the
Parliament, the Council and
Council and the European
Council and the European
Council and the European
the European Economic and
Economic and Social
Economic and Social
Economic and Social
Social Committee.
Committee.
Committee.
Committee.
321.
Art. 22, para
2.
Member States shall
2.
Member States shall
2.
Member States shall
2.
Member States shall
2
provide the Commission
provide the Commission
provide the Commission
provide the Commission with
with the necessary
with the necessary
with the necessary
the necessary information for
information for the
information for the
information for the
the preparation of the report
preparation of the report
preparation of the report
preparation of the report
referred to in paragraph 1.
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
Article 23
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Entry into force
Entry into force
Entry into force
Entry into force
323.
Art. 23
This Directive shall enter
This Directive shall enter
This Directive shall enter
This Directive shall enter into
into force on the twentieth
into force on the twentieth
into force on the twentieth
force on the twentieth day
day following that of its
day following that of its
day following that of its
following that of its
publication in the
Official
publication in the
Official
publication in the
Official
publication in the
Official
Journal of the European
Journal of the European
Journal of the European
Journal of the European
Union.
Union.
Union.
Union.
324.
Art. 24, title
Article 24
Article 24
Article 24
Article 24
Addressees
Addressees
Addressees
Addressees
325.
Art. 24
This Directive is addressed
This Directive is addressed
This Directive is addressed
This Directive is addressed to
to the Member States.
to the Member States.
to the Member States.
the Member States.
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