50 Amendments of Zdzisław KRASNODĘBSKI related to 2016/0280(COD)
Amendment 94 #
Proposal for a directive
Recital 3
Recital 3
(3) Rapid technological developments continue to transform the way works and other subject-matter are created, produced, distributed and exploited, and relevant legislation must be future-proof so as not to restrict technological development. New business models and new actors continue to emerge. The objectives and the principles laid down by the Union copyright framework remain sound. However, legal uncertainty remains, for both rightholders and users, as regards certain uses, including cross-border uses, of works and other subject-matter in the digital environment. As set out in the Communication of the Commission entitled ‘'Towards a modern, more European copyright framework’' 26 , in some areas it is necessary to adapt and supplement the current Union copyright framework. This Directive provides for rules to adapt certain exceptions and limitations to digital and cross-border environments, as well as measures to facilitate certain licensing practices as regards the dissemination of out-of- commerce works and the online availability of audiovisual works on video- on-demand platforms with a view to ensuring wider access to content. In order to achieve a well-functioning marketplace for copyright, there should also be rules on rights in publications, on the use of works and other subject-matter by online service providers storing and giving access to user uploaded content and on the transparency of authors' and performers' contracts. _________________ 26 COM(2015) 626 final. COM(2015) 626 final.
Amendment 110 #
Proposal for a directive
Recital 8
Recital 8
(8) New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images or data, generally known as text and data mining. Those technologies allow researchers to process large amounts of information to gain new knowledge and discover new trends. Whilst text and data mining technologies are prevalent across the digital economy, there is widespread acknowledgment that text and data mining can in particular benefit the research community and in so doing encourage innovation. However, in the Union, research organisations such as universities and research institutepublic and private entities and individuals are confronted with legal uncertainty as to the extent to which they can perform text and data mining of content. In certain instances, text and data mining may involve acts protected by copyright and/or by the sui generis database right, notably the reproduction of works or other subject- matter and/or the extraction of contents from a database. Where there is no exception or limitation which applies, an authorisation to undertake such acts would be required from rightholders. Text and data mining may also be carried out in relation to mere facts or data which are not protected by copyright and in such instances no authorisation would be required.
Amendment 112 #
Proposal for a directive
Recital 9
Recital 9
(9) Union law already provides certain exceptions and limitations covering uses for scientific research purposes which may apply to acts of text and data mining. However, those exceptions and limitations are optional and not fully adapted to the use of technologies in scientific research. Moreover, where researchusers have lawful access to content, for example through subscriptions to publications or open access licences, the terms of the licences may exclude text and data mining. As research is increasingly carried out with the assistance of digital technology, there is a risk that the Union's competitive position as a research area and action lines envisaged in the European Open Science Agenda will suffer unless steps are taken to address the legal uncertainty for text and data mining.
Amendment 115 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9 a) Union law does not sufficiently take into consideration that text and data mining is increasingly used beyond formal research organisations and/or for purposes other than scientific research which nevertheless contribute to innovation, technology transfer and the public interest.
Amendment 119 #
Proposal for a directive
Recital 10
Recital 10
(10) This legal uncertainty should be addressed by providing for a mandatory exception to the right of reproduction and also to the right to prevent extraction from a database. The new exception should be without prejudice to the existing mandatory exception on temporary acts of reproduction laid down in Article 5(1) of Directive 2001/29, which should continue to apply to text and data mining techniques which do not involve the making of copies going beyond the scope of that exception. Research organisations should also benefit from the exception when they engage into public-private partnerships.
Amendment 124 #
Proposal for a directive
Recital 11
Recital 11
Amendment 129 #
Proposal for a directive
Recital 12
Recital 12
(12) In view of a potentially high number of access requests to and downloads of their works or other subject- matter, rightholders should be allowed to apply measures where there is risk that the security and integrity of the system or databases where the works or other subject-matter are hosted wcould be jeopardised. Those measures should not exceed what is necessary to pursue the objective of ensuring the security and integrity of the system and should not undermine the effective application of the exception. These measures should not prevent or exclude the ability to develop and use text and data mining tools different from those offered by the rightholder as long as the security of the networks and databases is protected.
Amendment 134 #
Proposal for a directive
Recital 13
Recital 13
(13) There is no need to 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. re would be no unreasonable harm to the interests of rightholders. Use under the text and data mining exception would also not conflict with the normal exploitation of the works in a way that calls for separate compensation.
Amendment 140 #
Proposal for a directive
Recital 14
Recital 14
(14) Article 5(3)(a) of Directive 2001/29/EC allows Member States to introduce an exception or limitation to the rights of reproduction, communication to the public and making available to the public for the sole purpose of, among others, illustration for teaching. In addition, Articles 6(2)(b) and 9(b) of Directive 96/9/EC permit the use of a database and the extraction or re-utilization of a substantial part of its contents for the purpose of illustration for teaching. The scope of those exceptions or limitations as they apply to digital uses is unclear. In addition, there is a lack of clarity as to whether those exceptions or limitations would apply where teaching is provided online and thereby at a distance. Moreover, the existing framework does not provide for a cross-border effect. This situation may hamper the development of digitally- supported teaching activities and distance learning. Therefore, the introduction of a new mandatory exception or limitation is necessary to ensure that educational establishments benefit from full legal certainty when using works or other subject-matter in digital teaching activities, including online and across borders.
Amendment 145 #
Proposal for a directive
Recital 15
Recital 15
(15) While distance learning and cross- border education programmes are mostly developed at higher education level, digital tools and resources are increasingly used at all education levels, in particular to improve and enrich the learning experience. The exception or limitation provided for in this Directive should therefore benefit all educational establishments in primary, research organisations and cultural heritage institutions, srecondary, vocational and higher educationgnised as such by the Member State in which they are established, to the extent they pursue their educational activity for a non-commercial purpose. The organisational structure and the means of funding of an educational establishment are not the decisive factors to determine the non-commercial nature of the activity.
Amendment 150 #
Proposal for a directive
Recital 16
Recital 16
(16) The exception or limitation should cover digital uses of works and other subject- matter such as the use of parts or extracts of works to support, enrich or complement the teaching, including the related learning activities. The use of the works or other subject-matter under the exception or limitation should be only in the context of teaching and learning activities carried out under the responsibility of educational establishments, research organisations and cultural heritage institutions, including during examinations, and be limited to what is necessary for the purpose of such activities. The exception or limitation should cover both uses through digital means in the classrooma learning space, including where it is located outside the premises of the entity, and online uses through the educational establishment's secure electronic network, the access to which should be protected, notably by authentication procedures. The exception or limitation should be understood as covering the specific accessibility needs of persons with a disability in the context of illustration for teaching.
Amendment 158 #
Proposal for a directive
Recital 17
Recital 17
(17) Different arrangements, based on the implementation of the exception provided for in Directive 2001/29/EC or on licensing agreements covering further uses, are in place in a number of Member States in order to facilitate educational uses of works and other subject-matter. Such arrangements have usually been developed taking account of the needs of educational establishments and different levels of education. Whereas it is essential to harmonise the scope of the new mandatory exception or limitation in relation to digital uses and cross-border teaching activities, the modalities of implementation may differ from a Member State to another, to the extent they do not hamper the effective application of the exception or limitation or cross-border uses. This should allow Member States to build on the existing arrangements concluded at national level. In particular, Member States could decide to subject the application of the exception or limitation, fully or partially, to the availability of adequate licences, covering at least the same uses as those allowed under the exception. This mechanism would, for example, allow giving precedence to licences for materials which are primarily intended for the educational market. In order to avoid that such mechanism results in legal uncertainty or administrative burden for educational establishments, Member States adopting this approach should: a) take concrete measures to ensure that licensing schemes allowing digital uses of works or other subject-matter for the purpose of illustration for teaching are easily available and; b) provide that educational establishments are aware of the existence of such licensing schemes; c) create a dedicated technical tool providing information on which protected works or other subject matters are available through licences.
Amendment 168 #
Proposal for a directive
Recital 18
Recital 18
(18) An act of preservation may require a reproduction of a work or other subject- matter in the collection of a cultural heritage institution and consequently the authorisation of the relevant rightholders. Cultural heritage institutions, research organisations and educational establishements are engaged in the preservation of their collections for future generations. Digital technologies offer new ways to preserve the heritage contained in those collections but they also create new challenges. In view of these new challenges, it is necessary to adapt the current legal framework by providing a mandatory exception to the right of reproduction in order to allow those acts of preservation.
Amendment 172 #
Proposal for a directive
Recital 19
Recital 19
(19) Different approaches in the Member States for acts of preservation by cultural heritage institutions, research organisations and educational establishments hamper cross- border cooperation and the sharing of means of preservation by cultural heritage institutions in the internal market, leading to an inefficient use of resources.
Amendment 174 #
Proposal for a directive
Recital 20
Recital 20
(20) Member States should therefore be required to provide for an exception to permit cultural heritage institutions, research organisations and educational establishments to reproduce works and other subject-matter permanently in their collections for preservation purposes, for example to address technological obsolescence or the degradation of original supports. These entities should be also allowed to make internal organisational reproductions for varying purposes including insurance, rights clearance, and loans. Such an exception should allow for the making of copies by the appropriate preservation tool, means or technology, in the required number and at any point in the life of a work or other subject-matter to the extent required in order to produce a copy for preservation purposes onlysuch reproduction. The reproduction activities may be carried out in partnership with other institutions and third parties, including those located in other Member States.
Amendment 180 #
Proposal for a directive
Recital 21
Recital 21
(21) For the purposes of this Directive, works and other subject-matter should be considered to be permanently in the collection of a cultural heritage institution when copies are owned or permanently held by the cultural heritage institution, research organisation or educational establishment when copies are owned, held on a long term loan or are permanently held by the entity, for example as a result of a transfer of ownership or licence agreements.
Amendment 193 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Member States shall provide publishers of press publications with theWhen a contract concerning press publications is concluded, individually or collectively, by authors with a publisher, the author covered by this contract shall be presumed, subject to contractual clauses to the contrary, to have transferred his rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications.
Amendment 194 #
Proposal for a directive
Recital 22
Recital 22
(22) Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of out-of-commerce works or other subject-matter. However, the particular characteristics of the collections of out-of-commerce works mean that obtaining the prior consent of the individual rightholders may be very difficult or even impossible. This can be due, for example, to the age of the works or other subject- matter, their limited commercial value or the fact that they were never intended for commercial use. It is therefore necessary to provide for measures to facilitate the licensing of rights in out- of-commerce works that are in the collections of cultural heritage institutions and thereby to allow the conclusion of agreements with cross- border effect in the internal market.
Amendment 196 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
Amendment 198 #
Proposal for a directive
Article 11 – paragraph 3
Article 11 – paragraph 3
Amendment 199 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
Amendment 205 #
Proposal for a directive
Recital 27
Recital 27
Amendment 216 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Information society service providers that stoare and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders,ctively and directly involved in the making available to the public of user uploaded copyright protected works or other subject-matter and where this activity is not of a mere technical, automatic and passive nature shall take measures to ensure the functioning of agreements concluded with rightholders forgoverning the use of their works or other subject-matter or to prevent the availability on their services ofsuch content in order to ensure fair and appropriate compensation for rightholders unless the works orand other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate informconcerned are subject to exceptions or free licences. The implementation of such agreements shall respect users' fundamental right to privacy and the right of rightholders to fair remuneration on. At the functioning and the deployment of the measures, as well as, when relevant,request of rightholders, the service providers shall provide them with adequate reporting on the recognition and use of their works and other subject-matter.
Amendment 228 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
3. Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments.
Amendment 265 #
Proposal for a directive
Recital 38 – paragraph 1
Recital 38 – paragraph 1
Where information society service providers store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities and performing an act of communication to the public, they are obliged to conclude licensing agreements with rightholders who express their will to conclude such agreements, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council34 . _________________ 34 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).
Amendment 281 #
Proposal for a directive
Recital 38 – paragraph 3
Recital 38 – paragraph 3
In order to ensure the functioning of any licensing agreement, information society service providers storing and providing access to the public to large amounts of copyright protected works or other subject- matter uploaded by their users should takeagree with rightholders appropriate and proportionate measures to ensure protection of works or other subject-matter, such as implementing effective technologies in order to facilitate effective, transparent reporting in these agreements. 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.
Amendment 284 #
Proposal for a directive
Recital 38 – paragraph 3 a (new)
Recital 38 – paragraph 3 a (new)
Large amounts of copyright-protected works or other subject matter should be understood to signify large amounts of works or subject matter within the same category or categories. The notion of category should be interpreted broadly to include such categories as music, broadcasts, films, or computer games. Consequently, the obligations in Article 13 should only apply to information society service providers in relation to the categories of works and other subject matter that the service stores and provides access to in large amounts and not to other categories.
Amendment 302 #
Proposal for a directive
Recital 40
Recital 40
(40) Certain rightholders such as authors and performers need information to assess the economic value of their rights which are harmonised under Union law. This is especially the case where such rightholders grant a licence or a transfer of rights in return for remuneration. As authors and performers tend to be in a weaker contractual position when they grant licences or transfer their rights, they need information to assess the continued economic value of their rights, compared to the remuneration received for their licence or transfer, but they often face a lack of transparency. Therefore, the sharing of adequate information by their contractual counterparts orand subsequent transferees or licensees, as well as by their successors in title is important for the transparency and balance in the system that governs the remuneration of authors and performers. The reporting obligation should be transferred with the rights and therefore follow the work across all forms of exploitation irrespective of who exploits it and in which territory.
Amendment 306 #
Proposal for a directive
Recital 40
Recital 40
(40) Certain rightholders such as authors and performers need information to assess the economic value of their rights which are harmonised under Union law. This is especially the case where such rightholders grant a licence or a transfer of rights in return for remuneration. As authors and performers tend to be in a weaker contractual position when they grant licences or transfer their rights, they need information to assess the continued economic value of their rights, compared to the remuneration received for their licence or transfer, but they often face a lack of transparency. Therefore, the sharing of adequate information by their contractual counterparts orand subsequent transferees or licensees, as well as by their successors in title is important for the transparency and balance in the system that governs the remuneration of authors and performers.
Amendment 323 #
Proposal for a directive
Recital 43
Recital 43
(43) Authors and performers are often reluctant to enforce their rights against their contractual partners before a court or tribunal. Member States should therefore provide for an alternative dispute resolution procedure that addresses claims related to obligations of transparency and the contract adjustment mechanism and that it is free of charge as well as accessible for authors and performers. Those claims could be filed both by individuals and by entities acting on behalf of authors and performers.
Amendment 335 #
Proposal for a directive
Article 2 – paragraph 1 a (new)
Article 2 – paragraph 1 a (new)
(1a) 'educational establishment' means a school, college, university, or any other organisation the primary goal of which is to provide educational services: (a) on a not-for-profit basis or by reinvesting all the profits in such provision; or (b) pursuant to a public interest mission recognised by a Member State.
Amendment 341 #
Proposal for a directive
Article 2 – paragraph 3
Article 2 – paragraph 3
(3) ‘cultural heritage institution’ means a publicly accessible library or museum, museum, gallery or educational establishment, an archive or a film or audio heritage institution, or a public service broadcaster;
Amendment 359 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC and Article 11(1) of this Directive for reproductions and extractions made by research organisationpublic entities, private entities or individuals in order to carry out text and data mining of works or other subject- matter to which they have lawful access for the purposes of scientific research.
Amendment 365 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Member States shall encourage rightholders and, research organisations, and other interested parties to define commonly-agreed best practices concerning the application of the measures referred to in paragraph 3.
Amendment 370 #
Proposal for a directive
Article 4 – title
Article 4 – title
Use of works and other subject-matter in digital and cross-border teaching activities
Amendment 377 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. Member States shall provide for an exception or limitation to the rights provided for in Articles 2 and 3 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1) of Directive 2009/24/EC and Article 11(1) of this Directive in order to allow for the digital use of works and other subject- matter for the sole purpose of illustration for teaching or scientific research, to the extent justified by the non-commercial purpose to be achieved, provided that the use:
Amendment 383 #
Proposal for a directive
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) takes place oin the premisesa learning space of an educational establishment, research organisation or cultural heritage institution, recognised as such by the Member State which territory they are established, or through a secure electronic network accessible only by the educational establishment's pupils or studentir learners and teaching staff;
Amendment 411 #
Proposal for a directive
Article 4 – paragraph 4 a (new)
Article 4 – paragraph 4 a (new)
4a. Any contractual provision contrary to the exception set out in paragraph 1 shall be unenforceable.
Amendment 413 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1)(a) of Directive 2009/24/EC and Article 11(1) of this Directive, permitting cultural heritage institutions, research organisations and educational establishments to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for the sole purpose of the preservation of such works or other subject-matter and to the extent necessary for such preservation, as well as internal organisational reproductions for purposes related to the implementation of their public interest missions.
Amendment 454 #
Proposal for a directive
Article 7 – paragraph 2 – subparagraph 1
Article 7 – paragraph 2 – subparagraph 1
A work or other subject-matter shall be deemed to be out of commerce when the whole work or other subject-matter, in all its translations, versions and manifestations, is not available to the public through customary channels of commerce and cannot be reasonably expected to become so.
Amendment 491 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Member States shall provide publishers of press publications with theWhen a contract concerning a press publication is concluded, individually or collectively, by authors with a publisher, the author covered by this contract shall be presumed, subject to contractual clauses to the contrary, to have transferred his rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications.
Amendment 496 #
Proposal for a directive
Article 11 – paragraph 2
Article 11 – paragraph 2
Amendment 498 #
Proposal for a directive
Article 11 – paragraph 3
Article 11 – paragraph 3
Amendment 499 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
Amendment 542 #
Proposal for a directive
Article -14 (new)
Article -14 (new)
Article -14 Unwaivable right to remuneration 1. Member States shall ensure that when an audiovisual author has transferred or assigned his/her making available right to a producer, that author shall retain the right to obtain equitable remuneration. 2. This right to obtain equitable remuneration for the making available of the author's work is inalienable and cannot be waived. 3. The administration of this right to obtain equitable remuneration for the making available of the author's work may be entrusted to collective management organisations representing audiovisual authors or be carried out by other collective agreements, including voluntary collective management agreements, which guarantee such remuneration to audiovisual authors for their making available right.
Amendment 544 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
Amendment 555 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. The obligation in paragraph 1 shall be proportionate and effective and shall ensure an appropriate level of transparency in every sector, as well as a right of authors and performers to audit. However, in those cases where the administrative burden resulting from the obligation would be disproportionate in view of the revenues generated by the exploitation of the work or performance, Member States may adjust the obligation in paragraph 1, provided that the obligation remains effective, enforceable and ensures an appropriate level of transparency.
Amendment 573 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Member States shall ensure that authors and performers are entitled to request, or any representatives appointed by them, are entitled to claim additional, appropriate and equitable remuneration from the party with whom they entered into a contract for the exploitation of the rights when the remuneration originally agreed is disproportionately low compared to the subsequent relevanet revenues and benefits directly derived from the exploitation of the particular author or performer's works or performances.
Amendment 579 #
Proposal for a directive
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
All Member States shall ensure that contracts include a rights reversion mechanism to enable the authors to terminate a contract in case of insufficient exploitation or payment of the remuneration provided for, as well as insufficient or lack of regular reporting and promotion.
Amendment 587 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
Member States shall provide that disputes concerning the transparency obligation under Article 14 and the contract adjustment mechanism under Article 15 may be submitted to a voluntary, alternative dispute resolution procedure. Authors and performers or any representatives appointed by them may bring a claim to the alternative dispute resolution procedure.