41 Amendments of Nessa CHILDERS related to 2016/0280(COD)
Amendment 83 #
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. 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 86 #
Proposal for a directive
Recital 4
Recital 4
(4) This Directive is based upon, and complements, the rules laid down in the Directives currently in force in this area, in particular Directive 96/9/EC of the European Parliament and of the Council27 , Directive 2000/31/EC of the European Parliament and of the Council 27a, Directive 2001/29/EC of the European Parliament and of the Council28 , Directive 2006/115/EC of the European Parliament and of the Council29 , Directive 2009/24/EC of the European Parliament and of the Council30 , Directive 2012/28/EU of the European Parliament and of the Council31 and Directive 2014/26/EU of the European Parliament and of the Council32 . _________________ 27 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). 27a 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 (Directive on electronic commerce) (OJ L 178, 17.7.2000, p. 1). 28 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). 29 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). 30 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). 31 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). 32 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).
Amendment 97 #
Proposal for a directive
Recital 5
Recital 5
(5) In the fields of research, education and preserv and innovation, transformative use, education ofand cultural heritage, digital technologies permit new types of uses that are not clearly covered by the current Union rules on exceptions and limitations. In addition, the optional nature of exceptions and limitations provided for in Directives 2001/29/EC, 96/9/EC and 2009/24/EC in these fields may negatively impacts the functioning of the internal market. This is particularly relevant as regards cross-border uses, which are becoming increasingly important in the digital environment. Therefore, the existing exceptions and limitations in Union law that are relevant for scientific research, teaching and preservation of cultural heritage should be reassessed and complemented in the light of those new uses. Mandatory exceptions or limitations for uses of text and data mining technologies in the field of scientific research, illustration for teaching in the digital environment and for preserv, illustration for teaching , user-generated content, freedom of panorama and for preservation and dissemination of cultural heritage should be introduced. For uses not covered by the exceptions or the limitations provided for in this Directive, the exceptions and limitations existing in Union law should continue to apply. Directives 96/9/EC and 2001/29/EC should be adapted.
Amendment 113 #
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 tothe processing of 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 doinghere is a need to clarify the legality of copies made for purposes of text and data mining in order to encourage innovation. Howe and discover,y in the Union,all fields. Without a mandatory exception applying throughout the Union, all entities engaging in text and data mining, including research organisations such as universities and research institutes 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 rightholdersFor text and data mining to occur, one first needs to access information and then to reproduce that information. It is generally only after that information is normalised that its processing through text and data mining can occur. 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 itself or an extraction from a database into one that can be subjected to text and data mining. The copyright relevant processes in the use of text and data mining technology is consequently not the text and data mining process itself which consists of a reading and analysis of digitally stored normalised information, but the process of access and the process by which information is normalised to enable its automated computational analysis. The process of access to information be it works or other subject matter protected by copyright is already regulated in the copyright related acquis. In certain instances, text and data mining could involve works protected by copyright and/or by the sui generis database right. 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 125 #
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 inxt and data mining technologies which are relevant far beyond the area of scientific research. Moreover, where researchers havethere is 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 miningregarding text and data mining for all potential users. Union law should acknowledge that text and data mining is increasingly used beyond formal research organisations and for purposes other than scientific research which nevertheless contribute to innovation, technology transfer and the public interest.
Amendment 131 #
Proposal for a directive
Recital 9 b (new)
Recital 9 b (new)
(9 b) Furthermore, there is widespread acknowledgment that access to normalised information in a format which enables it to be subjected to text and data mining can in particular benefit the research community in its entirety including to smaller research organisations especially when there is no lawful access to content, for example through subscriptions to publications or open access licences. In the Union, research organisations such as universities and research institutes are confronted with challenges to gain lawful access to the volume of digitally stored information required for new knowledge to be sought through the use of text and data mining.
Amendment 134 #
Proposal for a directive
Recital 9 a (new)
Recital 9 a (new)
(9 a) Scientific data produced with public funding should be made available in an open format, so that researchers, citizens and companies can access the data and re-use them, including to perform text and data mining. This obligation should create an Open Data mandate for the benefit of researchers and of European SMEs and start-ups. For the advancement of European innovation, guiding principles on text and data mining enablement should be further scrutinised along the lines of the Horizon 2020 Open Research Data Pilot. The exception for text and data mining should cover all data sources, including data hosted by information society service providers, so that concentrated and anti-competitive research models can be avoided.
Amendment 136 #
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 for the purposes of text and data mining, which should not be subject to compensation given that in view of the nature and scope of the exception the harm should be minimal. An additional mandatory exception should allow research organisations to have access to normalised information in a format that enables it to be text and data mined provided that that process is carried out by the research organisation. Rightholders should not be able to seek compensation for this exception that goes beyond what is necessary and proportionate to the cost of the normalisation process. Research organisations should also benefit from this exception when they engage in public-private partnerships. These new exceptions 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 156 #
Proposal for a directive
Recital 11
Recital 11
(11) Research organisations across the Union encompass a wide variety and size of entities the primary goal of which is to conduct scientific research or to do so together with the provision of educational services. Due toTaking into account the diversity of such entities, it is impfor instance small research ortgant to have a common understanding of the beneficiaries of the exceptionisations with only limited access to content, it is important that rightholders provide access to normalised datasets for the purpose of text and data mining. Despite different legal forms and structures, research organisations across Member States generally have in common that they act either on a not for profit basis or in the context of a public- interest mission recognised by the State. Such a public-interest mission may, for example, be reflected through public funding or through provisions in national laws or public contracts. At the same time, 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 of the research, should not be considered research organisations for the purposes of this Directive.
Amendment 159 #
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 would be jeopardised. Those measures should not exceed what is necessarand in order to ensure reproducibility of research results, Member States shall designate a facility to safely sto pursue the objective of ensuring the security and integrity of the system and should not undermine the effective application of the exceptionre datasets used for text and data mining.
Amendment 243 #
Proposal for a directive
Recital 21 e (new)
Recital 21 e (new)
(21 e) Following technological developments and evolving user behaviour, a significant phenomenon of cultural creation has emerged, which relies on users uploading or displaying content, in various forms, to online services. Such user-generated content may comprise extracts or quotations of protected works or other subject-matter, which may be altered, combined or transformed for different purposes by users. Such uses of extracts or quotations within user-generated content, for various purposes such as the illustration of an idea, review or entertainment, are now widespread online and, provided that the use of such extracts or quotations of protected works or other subject-matter is proportionate, do not cause significant economic harm to the rightholders concerned and may even advertise the work used within the user-generated content.
Amendment 244 #
Proposal for a directive
Recital 21 f (new)
Recital 21 f (new)
(21 f) Despite some overlap with existing voluntary exceptions or limitations, such as the ones for quotation and parody, the use of protected works or other subject- matter within user-generated content is nonetheless not properly covered by the existing list of exceptions or limitations, creating legal uncertainty for users. Particularly the voluntary nature of existing exceptions and limitations is significantly curtailing the development of user-generated content, which is typically disseminated in a borderless online environment. It is therefore necessary to provide a new mandatory specific exception to authorise the legitimate uses of extracts or quotations of protected works or other subject-matter within user- generated content.
Amendment 281 #
Proposal for a directive
Recital 31
Recital 31
Amendment 295 #
Proposal for a directive
Recital 32
Recital 32
Amendment 312 #
Proposal for a directive
Recital 33
Recital 33
(33) For the purposes of this Directive, it is necessary to defineclarify the sconceptpe of press publication in a way that embraces only journalistic publications, published by a service provider, periodically or regularly updated in any media, for the purpose of informing or entertaining. Such publications would include, for instance, daily newspapers, weeklotection set out in Article s2 and 3 of Directive 2001/29/EC. In order to improve legal certainty for all concerned parties, and to ensure the freedom to carry out certain acts necessary for monthly magazines of general or special ithe normal functioning of the Internest and news websites. Periodical publications which 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 doess well as to take account of certain fundamental rights, these Articles should not extend to acts of hyperlinking, which do not constitute communication to the public.
Amendment 326 #
Proposal for a directive
Recital 34
Recital 34
Amendment 340 #
Proposal for a directive
Recital 35
Recital 35
Amendment 369 #
Proposal for a directive
Recital 37
Recital 37
(37) Over the last years, the functioning of the online content marketplace has gained in complexity. Online services providing access tohosting copyright protected content uploaded by their users without the involvement of right holders have flourished and have become mainimportant sources of access to content online. This affects rightholders' possibilities to determine whether, and under which conditions, their work and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it allowing for diversity and ease of access to content but also generating challenges when copyright protected content is uploaded without prior authorisation from rightholders.
Amendment 386 #
Proposal for a directive
Recital 38 – paragraph 1
Recital 38 – paragraph 1
Where information society service providers that store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyondinformation provided by a recepient of the service conduct licencing agreements with rightsholders on a voluntary basis, the users' fundamental rights to privacy, freedom of expression and freedom of information are often not sufficiently taken into account and their ability to assert their right of use under an exception or limitation is often unjustly curtailed by the measures provision of physical facilities and performing an act of communication to the publut in place as part of those licencing agreements. In order to correct this situation and provide legal certainty to users who are exercising their right of use under an exception or limitation that exists under national law in the country in whic,h they are obliged to conclud use is made, a legal framework governing those licenscing agreements with rightholders, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Councilis necessary. In order to protect fundamental rights and improve legal certainty for all concerned parties in light of the case law of the Court of Justice of the European Union, it is necessary that any agreements on measures between rightsholders and information society service providers do not impose a general obligation on information society service providers to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. 34 . _________________ 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 405 #
Proposal for a directive
Recital 38 – paragraph 2
Recital 38 – paragraph 2
Amendment 415 #
Proposal for a directive
Recital 38 – paragraph 3
Recital 38 – paragraph 3
Amendment 431 #
Proposal for a directive
Recital 38 a (new)
Recital 38 a (new)
(38 a) Any agreements on measures between rightsholders and information society service providers that might be concluded should provide for an obligation for rightholders to provide the necessary data to allow the services to identify their content in a publicly accessible database. Such obligation should help clarify the responsibility of rightholders for claims made by third parties over the use of works which they would have identified as being their own in the implementation of any agreement reached with the service provider.
Amendment 437 #
Proposal for a directive
Recital 39
Recital 39
Amendment 519 #
Proposal for a directive
Article 2 – paragraph 4
Article 2 – paragraph 4
Amendment 538 #
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 organisations in order to carry out text and data mining of works or other subject-matter to which they have lawful acc. This includess, for the sole purposes of scientific researchtext and data mining, the permission to extract contents of databases and to make reproductions.
Amendment 547 #
Proposal for a directive
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1a. Member States shall provide for rightholders who market works or other subject-matter primarily for research purposes, to have an obligation to allow research organisations not having lawful access to those works or other subject- matter access to datasets that are optimised for enabling them to carry out text and data mining on all aspects of the works. Member States may also provide for rightholders to have a right to request compensation for meeting this obligation as long as that compensation is related to the cost of formatting these datasets and does not exceed what is necessary and appropriate to cover those costs.
Amendment 548 #
Proposal for a directive
Article 3 – paragraph 2
Article 3 – paragraph 2
2. Any contractual provision or legal protection of technological measures contrary to the exception provided for in paragraph 1 shall be unenforceable.
Amendment 554 #
Proposal for a directive
Article 3 – paragraph 3
Article 3 – paragraph 3
3. Rightholders shall not be allowed to apply measures to ensure the security and integrity of the networks and databases where the works or other subject-matter are hosted. Such measures shall notechnologically limit the right to exercise the exception adopted pursuant gto beyond what is necessary to achieve that objectiveparagraph 1.
Amendment 559 #
Proposal for a directive
Article 3 – paragraph 4
Article 3 – paragraph 4
4. Member States shall encourage rightholders and research organisations to define commonly-agreed best practices concerning the application of the measures referred to in paragraph 3designate a facility to safely store datasets used for text and data mining and to make them accessible for verification purposes.
Amendment 564 #
Proposal for a directive
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
Amendment 659 #
Proposal for a directive
Article 5 e (new)
Article 5 e (new)
Article 5 e User-generated content exception 1. Member States shall provide for an exception or limitation to the rights provided for in Articles 2, 3 and 4 of Directive 2001/29/EC, point (a) of Article 5 and Article 7(1) of Directive 96/9/EC, point (a) of Article 4(1) of Directive 2009/24/EC and Article 13 of this Directive in order to allow for the digital use of quotations or extracts of works and other subject-matter comprised within user-generated content for purposes such as criticism, review, entertainment, illustration, caricature, parody or pastiche provided that the quotations or extracts: (a) relate to works or other subject-matter that have already been lawfully made available to the public; (b) are accompanied by the indication of the source, including the author's name, unless this turns out to be impossible; and (c) are used in accordance with fair practice and in a manner that does not extend beyond the specific purpose for which they are being used. 2. Any contractual provision contrary to the exception provided for in this paragraph 1 shall be unenforceable.
Amendment 731 #
Proposal for a directive
Article 11
Article 11
Amendment 797 #
Proposal for a directive
Chapter 4 – title
Chapter 4 – title
Certain uses of protected content by users of online services
Amendment 804 #
Proposal for a directive
Article 13 – title
Article 13 – title
Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploainformation provided by their users
Amendment 820 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. IWhere information society service providers that store and provide to the public access to large amounts of works or oinformation provided by recipients of ther subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works oervice, conclude agreements with rightholders, the implementation of such agreements shall respect the users' fundamental rights and shall in particular nother 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 information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter convey an obligation upon the information society service provider to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. The service providers shall cooperate and work together with rightholders to ensure that the functioning and implementation of such agreements are full and transparent towards the users.
Amendment 833 #
Proposal for a directive
Article 13 – paragraph 1 a (new)
Article 13 – paragraph 1 a (new)
1 a. In order to ensure the transparency of the agreements mentioned in paragraph 1, rightholders shall provide, in a publicly accessible database, all the necessary data related to the holder of the right, the protected subject matter and relevant territories, in order to allow the service providers to identify accurately their content.
Amendment 835 #
Proposal for a directive
Article 13 – paragraph 1 b (new)
Article 13 – paragraph 1 b (new)
1 b. In order to ensure a proportionate implementation of the voluntary agreements mentioned in paragraph 1, Member States shall take appropriate measures to ensure that rightholders and information society service providers make available to the beneficiary of an exception or limitation provided for in national law in accordance with Article 5 of Directive 2001/29 and with [Articles XXX of this Directive] the means of benefiting from that exception or limitation, to the extent necessary to benefit from that exception or limitation.
Amendment 845 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Member States shall ensure that the servicenational law providers 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 1users with access to a court or other relevant authority for the purpose of asserting their right of use under an exception or limitation.
Amendment 848 #
Proposal for a directive
Article 13 – paragraph 2 a (new)
Article 13 – paragraph 2 a (new)
2 a. The agreements referred to in paragraph 1 shall be implemented without prejudice to the use of works made within an exception or limitation to copyright. To this end, Member States shall ensure that users are allowed to communicate rapidly and in an effective manner with the rightholders who have requested any measures within the scope of agreements referred to in paragraph 1 in order to challenge the application of those measures.
Amendment 855 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
Amendment 995 #
Proposal for a directive
Article 18 – paragraph 2
Article 18 – paragraph 2