91 Amendments of Robert ROCHEFORT related to 2016/0280(COD)
Amendment 98 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Search engines embrace a wide variety of services whose aim is in principle to enable the public to access resources disseminated over the Internet. However, the nature of the acts performed by these entities varies greatly from service to service. While text search engines supply a clickable hypertext link whose basic aim is to lead users to the reference online service, most search engines specialising in images directly display the works referenced in the search results, autonomously in relation to the online service from which they are derived. As the images can then be consulted in their original format and in high quality, these search engines therefore in terms of their functionalities more closely resemble image banks. Exploitation of graphic, plastic or photographic works therefore requires authorisation by the rightholders under Articles 2 and 3 of Directive 2001/29/EC. In view of the very large number of images reproduced or communicated to the public by these search engines, it is desirable to leave it to the discretion of Member States to apply balanced solutions, with provision for equitable compensation.
Amendment 99 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) In accordance with the principles of subsidiarity and proportionality, in Member States where commercial use of the freedom of panorama is not authorised, reproductions and representations by natural persons of works of architecture and sculptures permanently located in public places must always require the prior authorisation of the authors, their rightholders or collecting societies. Paragraph 37 of Parliament's resolution of 9 July 2015 on the implementation of Directive 2001/29/EC states that this field could benefit from more common rules, while remarking that differences may be justified to allow Member States to legislate according to their specific cultural and economic interests.
Amendment 101 #
Proposal for a directive
Recital 5 b (new)
Recital 5 b (new)
(5b) The right of communication to the public and the right of making available to the public defined in Article 3 of the Directive, which implements the principles and rules laid down in Article 8 of the WIPO Copyright Treaty, to which the Union is a party, play a vital role in the information society. Union law should guarantee its effect and effectiveness in order to afford a high level of protection to rightholders.
Amendment 117 #
(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 partnershipIn order to preserve the capacity of rightholders to develop licences on the market and to receive payment, the exception should apply only to text and data mining conducted for non- commercial purposes.
Amendment 121 #
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 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 rightholders. Text and data mining may also be carried out in relation to mere facts or data which are not protected by copyright andor legally accessible, for which in such instances no authorisation would be required.
Amendment 149 #
Proposal for a directive
Recital 10 a (new)
Recital 10 a (new)
(10a) In the context of public-private partnerships, a private organisation should intervene only if it represents a structure with a non-commercial purpose and if it has legitimate access to the content.
Amendment 152 #
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 or extracts under the exception or limitation should be only in the context of teaching and learning activities carried out under the responsibility of educational establishments, including during examinations, and be limited to what is necessary for the purpose of such activities. Thus, for example, the exception should be limited to the use of brief extracts for intellectual works, except in the case of plays and poems. The exception or limitation should cover both uses through digital means in the classroom 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 162 #
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 wshould, for example, allow giving precedence to licences for not, on the other hand, apply to materials which are primarily intended for the educational market, for which it should be possible to arrange licences. In order to avoid that such mechanism results in legal uncertainty or administrative burden for educational establishments, Member States adopting this approach should 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 that educational establishments are aware of the existence of such licensing schemes.
Amendment 205 #
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 wshould, for example, allow giving precedence to licences for not apply to materials which are primarily intended for the educational market, for which it should be possible to arrange licences. In order to avoid that such mechanism results in legal uncertainty or administrative burden for educational establishments, Member States adopting this approach should 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 that educational establishments are aware of the existence of such licensing schemes.
Amendment 213 #
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 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 for these cultural heritage institutions.
Amendment 227 #
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 of these protected works or other subject-matter are owned or permanently held by the cultural heritage institution, for example as a result of a transfer of ownership or licence agreementsf the work or other subject-matter or licence agreements, thereby enabling the file to be stored on the institution's server.
Amendment 234 #
Proposal for a directive
Recital 21 a (new)
Recital 21 a (new)
(21a) 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 in this Directive. This exception should only be applied in certain special cases which do not conflict with normal exploitation of the work or other subject-matter concerned and do not unreasonably prejudice the legitimate interests of the rightholder. For the purpose of assessing such prejudice, 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 must 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.
Amendment 235 #
Proposal for a directive
Recital 21 a (new)
Recital 21 a (new)
(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 these users might have altered, combined or otherwise transformed.
Amendment 238 #
Proposal for a directive
Recital 21 b (new)
Recital 21 b (new)
(21 b) Despite some overlapping with existing exceptions or limitations, any content that is uploaded or made available by a user that reasonably includes extracts of protected works or other subject-matter is not 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 within content that is uploaded or made available by users.
Amendment 239 #
Proposal for a directive
Recital 21 b (new)
Recital 21 b (new)
(21 b) Information society service providers cannot claim to be covered by the exception 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, to relieve them of their responsibility or reduce the scope of their obligations according to the provisions of Article 13 of this directive.
Amendment 255 #
Proposal for a directive
Recital 23
Recital 23
(23) Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of mechanism allowing for licencesto be used for out-of- commerce works to extend to the rights of rightholders that are not represented by the collective management organisation, in accordance to their legal traditions, practices or circumstances. Such mechanisms can include extended collective licensing and presumptions of representation. This directive should not anticipate any specific solutions developed in Member States to handle the mass digitisation of out-of-commerce works.
Amendment 261 #
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 andinstallations and thus performing an act of communication to the public and/or making available to the public, as well as an act of reproduction, they are obliged to conclude licensing agreements with rightholders who so request, 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 . In the interests of ensuring legal certainty for users of services, these agreements should cover the liability of the latter when they are not acting professionally for acts falling under Articles 2 and 3 of Directive 2001/29/EC that they perform. _________________ 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 274 #
Proposal for a directive
Recital 38 – paragraph 2
Recital 38 – paragraph 2
In respect of this Article 14, it is necessary to verify whether the service provider plays an active role, including by optimising the presentation of the uploaded works or subject-mattercontent provided by the service or promoting themat content, irrespective of the nature of the means used therefor.
Amendment 278 #
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 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/ECno request for a licensing agreement is addressed to the information society service providers who play an active role or when the information society service providers which are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC store and offer to the public a significant quantity of works or other subject-matter uploaded by their users.
Amendment 284 #
Proposal for a directive
Recital 31
Recital 31
(31) A free and pluralist press is essential to ensure quality journalism and citizens' access to information. It provides a fundamental contribution to public debate and the proper functioning of a democratic society. In the transition from print to digital, publishers of press publicationress agencies and publishers are facing problems in licensing the online use of their publications and recouping their investments. In the absence of recognition of publishers of press publicationThis is largely due to the fact that some news aggregators use press agencies' and publishers' content without purchasing a licence and without making suitable payment for the work provided. News aggregators are responsible for the content that they make publicly available. In the absence of recognition of press agencies and publishers as rightholders, licensing and enforcement in the digital environment isare often complex and inefficient.
Amendment 292 #
Proposal for a directive
Recital 39
Recital 39
(39) Collaboration between information society service providers storing and providing access to the public to largesignificant amounts of copyright protected works or other subject-matter uploaded by their users and rightholders is essential for the functioning of technologies, such as content recognition technologies. In such cases, rightholders should provide the necessary data to allow the services to identify their content and the services should be transparent towards rightholders with regard to the deployed technologies, to allow the assessment of their appropriateness. The services should in particular provide rightholders with information on the type of technologies used, the 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 covered by an agreement.
Amendment 297 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
Amendment 299 #
Proposal for a directive
Recital 39 b (new)
Recital 39 b (new)
(39b) It should be recalled that, both in general and in the light of the references to Article 3 of Directive 2001/29/EC made in this directive, a work and/or other subject-matter is communicated to the public and/or made available to the public when a natural or legal person affords access to it to persons outside their normal family circle or most immediate associates. For this purpose it makes no difference that the latter can gain access to the works and/or other subject-matter at the same place or in different places and at the same time or at different times.
Amendment 300 #
Proposal for a directive
Recital 32
Recital 32
(32) The organisational and financial contribution of press agencies and publishers in producing press publications needs to be recognised and further encouraged to ensure the sustainability of the publishing industry. It is therefore necessary to provide at Union level a harmonised legal protection for press publications in respect of digital uses. Such protection should be effectively guaranteed through the introduction, in Union law, of rights related to copyright for the reproduction and making available to the public of press publications in respect of digital and analogue uses.
Amendment 318 #
Proposal for a directive
Recital 33
Recital 33
(33) For the purposes of this Directive, it is necessary to define the concept 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, weekly or monthly magazines of general or special interest 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 does not extend to acts of hyperlinking whichen such acts do not constitute communication to the public.
Amendment 320 #
Proposal for a directive
Recital 42
Recital 42
(42) Certain contracts for the exploitation of rights harmonised at Union level are of long duration, offering few possibilities for authors and performers to renegotiate them with their contractual counterparts or their successors in title. Therefore, without prejudice to the law applicable to contracts in Member States, there should be a remuneration adjustment mechanism for cases where the remuneration originally agreed under a licence or a transfer of rights is disproportionately low compared to the relevant revenues and the benefits derived from the exploitation of the work or the fixation of the performance, including in light of the transparency ensured by this Directive. The assessment of the situation should take account of the specific circumstances of each case as well as of the specificities and practices of the different content sectors. 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 other competent authority.
Amendment 331 #
Proposal for a directive
Recital 34
Recital 34
(34) The rights granted to the publishers of press publications and press agencies under this Directive should have the same scope as the rights of reproduction and making available to the public provided for in Directive 2001/29/EC, insofar as digital uses are concerned. TheyArticles 2 and 3(2) of Directive 2001/29/EC and Articles 3 and 9 of Directive 2006/115/EC, insofar as the use of press publications is concerned. Short extracts of copyrighted press publications constitute reproduction given their economic value. Their unauthorised use should therefore be prohibited unless they are being used in a private and non- commercial context. These rights should also be subject to the same provisions on exceptions and limitations as those applicable to the rights provided 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. The protection afforded to press agencies and publishers by this Directive should include any content generated automatically by news aggregators.
Amendment 338 #
Proposal for a directive
Recital 34 a (new)
Recital 34 a (new)
(34 a) When extracts are re-used by an aggregator, it should be possible for the press agency or publisher to decide for specific reasons to award the aggregator a licence free of charge.
Amendment 347 #
Proposal for a directive
Recital 35
Recital 35
(35) The protection granted to publishers of press publications and press agencies under this Directive should not affect the rights of the authors and other rightholders in the works and other subject- matter incorporated therein, including as regards the extent to which authors and other rightholders can exploit their works or other subject-matter independently from the press publication in which they are incorporated. Therefore, publishers of press publications and press agencies should not be able to invoke the protection granted to them against authors and other rightholders. This is without prejudice to contractual arrangements concluded between the publishers of press publications or press agencies, on the one side, and authors and other rightholders, on the other side.
Amendment 353 #
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 access for thenon-commercial purposes of scientific research.
Amendment 354 #
Proposal for a directive
Recital 36
Recital 36
(36) Press agencies and publishers, including those of press publications, books orand scientific publications, often operate on the basis of the transfer of authors' rights by means of contractual agreements or statutory provisions. In this context, publishers make an investment with a view to the exploitation of the works contained in their publications and may in some instances be deprived of revenues where such works are used under exceptions or limitations such as the ones for private copying and reprography. In a number of Member States compensation for uses under those exceptions is shared between authors and publishers. In order to take account of this situation and improve legal certainty for all concerned parties, Member States should be allowed to determine that, when an author has transferred or licensed his rights to a publisher or press agency or otherwise contributes with his works to a publication and there are systems in place to compensate for the harm caused by an exception or limitation, publishers and press agencies are entitled to claim a share of such compensation, whereas the burden on the publisher to substantiate his claim should not exceed what is required under the system in place.
Amendment 358 #
Proposal for a directive
Recital 36 a (new)
Recital 36 a (new)
(36 a) The obligation to acquire licences should also apply to news aggregators.
Amendment 370 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37 a) Despite the fact that more creative content is being consumed today than ever before, on services such as user- uploaded content platforms and content aggregation services, yielding significant profits, the creative sectors have not seen a comparable increase in revenues from this increase in consumption. The value of cultural and creative works has been diverted away from the authors, artists, producers and others rights holders, generating an unsustainable "value gap". This transfer of value, due to the lack of clarity regarding the status of these online services under copyright and e-commerce law, undermines the efficiency of the online market, distorts competition and drives down the overall value of cultural content online. It also limits consumer choice for new and innovative legitimate services in the European Digital Single Market and puts at risk cultural and creative industries that create significant jobs and growth for EU economy, as underlined by the European Parliament resolution of 13 December 2016 on a "coherent EU policy for cultural and creative industries (2016/2072(INI))"
Amendment 373 #
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, or of extracts thereof, with the exception of content intended chiefly for the educational market and the market in musical scores, for the sole purpose of illustration for teaching, to the extent justified by the non-commercial purpose to be achieved, provided that the use:
Amendment 375 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37 a) It should be clearly noted that the mechanism providing exemption from liability does not apply to services that play an active role in uploading copyrighted works or subject-matter. Accordingly, UUC services undertaking acts of communication to the public through their essential intervention in the act of communication to the public initiated by uploaders are not covered by Directive 2000/31/EC where copyright is concerned, and are therefore subject to the provisions of Directive 2001/29/EC in the same way as providers of online content services.
Amendment 376 #
Proposal for a directive
Recital 37 b (new)
Recital 37 b (new)
(37 b) Digital platforms are means of providing wider access to cultural and creative works and offer great opportunities for cultural and creative industries to develop new business models; consideration is to be made of how this process can function with more legal certainty and fairness and respect for right holders; importance of transparency and of ensuring a level playing field is necessary; in this regard, protection of right holders within the copyright and intellectual property framework is necessary in order to ensure recognition of values and stimulation of innovation, creativity, investment, to guarantee the success of a Digital Single Market, offering all diverse and quality cultural and creative works.
Amendment 379 #
Proposal for a directive
Recital 37 c (new)
Recital 37 c (new)
(37 c) This is why liability exemptions can only apply to genuinely neutral and passive online service providers, and not to services that play an active role in distributing, promoting and monetising content at the expense of creators.
Amendment 384 #
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, 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 reproduction as well as an act of communication to the public, including the act of making content available, the process of which began with the uploading by their users of the copyrighted works and subject-matter, they are obliged to conclude licensing agreements with rightholders who so request, covering rights of reproduction and communication to the public, 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. In respect of the liability exemption provided for in Article 14, it is necessary to verify whether the service provider plays an active role, including by optimising copyrighted uploaded content for the purpose of selection, categorisation or aggregation, or by promoting or recommending them, irrespective of the means used to that end. Where a service provider plays an active role it cannot be exempt from liability as provided for in Article 14 of Directive 2000/31/EC. Unless they are acting in a professional capacity, the liability of service users for copyrighted acts is covered by the licensing contracts concluded by the rightholders with the service providers. _________________ 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 396 #
Proposal for a directive
Article 4 – paragraph 2 – subparagraph 1
Article 4 – paragraph 2 – subparagraph 1
Member States may provide that the exception adopted pursuant to paragraph 1 does not apply generally or as regards specific types of works or other subject- matter, to the extent that adequate licences authorising the acts described in paragraph 1 are easily available in the market.
Amendment 432 #
Proposal for a directive
Recital 38 a (new)
Recital 38 a (new)
(38 a) In order to ensure the correct functioning of any licensing agreement, or to prevent unauthorised access to copyright protected works or other subject-matter uploaded by the users, information society service providers storing and disseminating this content and providing public access to it must take appropriate and proportionate measures to ensure the protection of these copyrighted works and other subject- matter, for example by implementing effective technologies.
Amendment 433 #
Proposal for a directive
Recital 38 b (new)
Recital 38 b (new)
(38 b) This obligation is also incumbent upon those information society service providers that can claim the liability exemption provided for in Article 14 of Directive 2000/31/EC when they store or provide public access to a significant amount of copyrighted works and other subject-matter uploaded by their users. A service provider not taking appropriate action or not responding effectively to requests made by rightholders to enter into licensing agreements will not be able to claim the protection provided by Article 14 (1) of Directive 2000/31/EC.
Amendment 435 #
Proposal for a directive
Article 7 – title
Article 7 – title
Use of out-of-commerce works by cultural heritage institutions
Amendment 439 #
Proposal for a directive
Recital 39
Recital 39
(39) Collaboration between 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 and rightholders is essential for the functioning of technologies, such as content recognition technologies. In such cases, rightholders shouldmust provide the necessary data to allow the services to identify their content and the services shouldmust be transparent towards rightholders with regard to the deployed technologies, to allow the assessment of their appropriateness. The services should in particular provide rightholders with information on the type of technologies used, the 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 covered by an agreement. In cases when the measures and technologies established on the basis of this Directive affect the uploading of content that is covered by an exception or authorisation, service suppliers must be required to set up complaint and redress mechanisms for the benefit of the users whose content has been affected by these measures. Such mechanisms must maintain a balance between the need to ensure that content covered by exceptions to copyright or authorisations is not unduly affected by the measures, and the need to ensure that complaint and redress mechanisms do not unreasonably prejudice the effectiveness of the measures. To achieve this aim, the complaint and redress mechanisms must allow rightholders to receive adequate information to assess complaints and respond to them. The complaint and redress mechanisms must also allow a suitable period of time for rightholders to respond to complaints.
Amendment 440 #
1. Member States shall provide that when a collective management organisa, in agreement with rightholders, users and cultural heritage institutions, on behalf of its members, concludes a non-exclusive licence for non-commercial purposes with a cultural heritage institutiona legal mechanism whereby non-exclusive licences may be granted for the digitisation, distribution, communication to the public or making available of out-of- commerce works or other subject-matter permanently in the collections of the institution, such a non-exclusive licence may be extended or presumed to apply to rightholders of the same category as those covered by the licence who are not represented by the collective management organisationsuch institutions, provided that:
Amendment 444 #
Proposal for a directive
Article 7 – paragraph 1 – point a
Article 7 – paragraph 1 – point a
Amendment 450 #
Proposal for a directive
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1a. This legal mechanism may take the form of an extended collective licence or a presumption when a collective management organisation is, on the basis of mandates from rightholders, broadly representative of rightholders in the category of protected works or other subject-matter and of the rights which are the subject of the licence;
Amendment 454 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
(39 a) The technical measures established should make it possible, at the request of and in association with the rightholders, to recognise given target content. Their aim is not to impose a general obligation to check and run data searches on the content, and do not require the use of the personal data of the end user. These measures are therefore fully compatible with Article 15 of Directive 2000/31/EC and the European Charter of Fundamental Rights.
Amendment 455 #
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 456 #
Proposal for a directive
Recital 39 b (new)
Recital 39 b (new)
(39 b) 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 to assist the parties in the resolution of their dispute.
Amendment 457 #
Proposal for a directive
Recital 39 c (new)
Recital 39 c (new)
(3 c) It should be recalled that, both in general and in the light of the references to Article 3 of Directive 2001/29/EC made in this directive, a copyrighted work and/or other subject-matter is communicated to the public and/or made available to the public when a natural or legal person affords access to it to persons outside their close and personal circle, defined as being their family or most immediate associates. For this purpose it makes no difference whether the latter can gain access to the copyrighted works and/or other subject-matter at the same place or in different places, and at the same time or at different times.
Amendment 459 #
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 or their successors in title is important for the transparency and balance in the system that governs the remuneration of authors and performers. The obligation to provide information must be transmitted with the rights and must therefore accompany the work however it is used and irrespective of who is using it or the location.
Amendment 466 #
Proposal for a directive
Article 7 – paragraph 4 – introductory part
Article 7 – paragraph 4 – introductory part
4. Member States shall ensure that the licences referred to in paragraph 1 are sought from a collective management organisation that is representative forin the Member State where:
Amendment 466 #
Proposal for a directive
Recital 41
Recital 41
(41) When implementing transparency obligations, the specificities of different content sectors and of the rights of the authors and performers in each sector should be considered. Member States should consult all relevant stakeholders as that should help determine sector-specific requirementwill ensure that the representative organisations of all relevant stakeholders determine sector-specific requirements and establish standardised procedures and formats for presenting the information in each sector, promoting automated processing making use of digital technologies and international identifiers of works. Collective bargaining should be considered as an option to reach an agreement between the relevant stakeholders regarding transparency. To enable the adaptation of current reporting practices to the transparency obligations, a transitional period should be provided for. The transparency obligations do not need to apply to agreements concluded with collective management organisations as those are already subject to transparency obligations under Directive 2014/26/EU.
Amendment 476 #
Proposal for a directive
Recital 42
Recital 42
(42) Certain contracts for the exploitation of rights harmonised at Union level are of long duration, offering few possibilities for authors and performers to renegotiate them with their contractual counterparts or their successors in title. Therefore, without prejudice to the law applicable to contracts in Member States, there should by could institute a remuneration adjustment mechanism for cases where the remuneration originally agreed under a licence or a transfer of rights is disproportionately low compared to the relevant revenues and the benefits derived from the exploitation of the work or the fixation of the performance, including in light of the transparency ensured by this Directive. The assIt is essment of the situation should take account of the specific circumstances of each case as well as of the specificities and practices of the different content sectorsial that the contractual position of authors and performers be strengthened so that they can enjoy fair, non-assignable remuneration and so as to avoid power imbalances between the parties. Such a provision would apply only to the parties directly linked contractually. 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 other competent authority or to terminate his or her contract.
Amendment 514 #
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 andor other subject-matter uploaded by their users
Amendment 516 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Information society service providers that store and provide to the public access to large amounts ofprotected works or other 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 protected conclude fair and balanced agreements with all rightholders governing such content at the request of those rightholders, unless they are eligible for the liability exemption provided for in Article 14 of Directive 2000/31/EC. Under the terms of the agreements with rightholders, these service providers shall take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject- matter. These agreements should cover the liability of users of information society service providers when these users are not acting professionally for acts falling under Articles 2 and 3 of Directive 2001/31/EC that they perform. When information society service providers (i) play an active part but are not required to conclude a licence agreement by the holders of rights to works or other subject- matter or to prevent the availability on their services ofstored by them and to which they provide public access, or (ii) are eligible for the liability exemption provided for in Article 14 of Directive 2000/31/EC, but store and provide to the public access to a large number of protected works or other subject-matter, these service providers shall take measures to prevent protected works or other subject-matter identified by rightholders through thein cooperation with the service providers from being made available by their services. 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. Rightholders shall provide information society service providers with all relevant and necessary details to ensure the functioning of measures taken by the service providers pursuant to this article.
Amendment 526 #
Proposal for a directive
Article 2 a (new)
Article 2 a (new)
Article 2a (5) ‘lawful access’ means access to content obtained in accordance with the applicable legislation;
Amendment 527 #
Proposal for a directive
Article 2 b (new)
Article 2 b (new)
Article 2b (6) ‘automated image referencing service’ means any online service which reproduces or makes available to the public for indexing and referencing purposes graphic or art works or photographic works collected by automated means via a third-party online service;
Amendment 528 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Member States shall ensure that the service 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 1. Any complaint filed under the mechanism shall be processed by the relevant rightholder within a reasonable period of time. The rightholder shall give evidence for the rights being upheld.
Amendment 532 #
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. In cooperation with the Member States, the Commission shall encourage the exchange of best practices across the Union regarding the results of any cooperation established pursuant to implementation of paragraph 1 of this Article.
Amendment 535 #
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, with the rightholders’ consent, text and data mining of works or other subject- matter to which they have lawful access for thenon-commercial purposes of scientific research.
Amendment 563 #
Proposal for a directive
Article 3 – paragraph 4 a (new)
Article 3 – paragraph 4 a (new)
4a. Copies of content accessible for text and data mining (TDM) must be kept in a secure way. They may not be stored or preserved in any form beyond the end of the TDM project. Any copy preserved or stored for more than six months after the end of the project shall be considered an unlawful copy.
Amendment 566 #
Proposal for a directive
Article 14 a (new)
Article 14 a (new)
Article 14a Fair remuneration Member States shall ensure that authors and performers receive fair remuneration for each mode of exploitation of their protected works and other subject-matter. There must be separate remuneration for each application of the right of communication to the public within the meaning of Directive 2001/29 and for each act of reproduction of the content of authors and performers.
Amendment 574 #
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 or extract thereof, except for contents that are primarily intended to the educational and musical scores markets, for the sole purpose of illustration for teaching, to the extent justified by the non-commercial purpose to be achieved, provided that the use:
Amendment 575 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Member States shall ensure that authors and performers are entitled to request additional, appropriate 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 relevant revenues and benefits derived from the exploitation of the works or performances.
Amendment 588 #
Proposal for a directive
Article 4 – paragraph 1 – point a
Article 4 – paragraph 1 – point a
(a) takes place on the premises of an educational establishment or through a secure electronic network accessible only by the educational establishment's pupils or students and teaching staff, and lasts for the time required to illustrate the lesson;
Amendment 598 #
Proposal for a directive
Article 4 – paragraph 1 – point b
Article 4 – paragraph 1 – point b
(b) is confined to short extracts of written, printed or digital work, to works of which few copies were published or to individual articles from newspapers or periodicals which cannot be accessed individually and separately by those entitled to access them, and is accompanied by the indication of the source, including the author's name, unless this turns out to be impossible.
Amendment 601 #
Proposal for a directive
Article 4 – paragraph 1 – subparagraph 1 (new)
Article 4 – paragraph 1 – subparagraph 1 (new)
The exception provided for paragraph 1 must allow the lesson to accessed by digital means both in the country in which the establishment providing it is situated and in that where the student is located;
Amendment 620 #
Proposal for a directive
Article 4 – paragraph 2 – subparagraph 2
Article 4 – paragraph 2 – subparagraph 2
Member States availing themselves of the provision of the first subparagraph shall take the necessary measures to ensure appropriate availability and visibility of the licences authorising the acts described in paragraph 1 for educational establishments.
Amendment 640 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
Member States may provide for fair compensation for the harm incurred by the rightholders due to the use of their works or other subject-matter pursuant to paragraph 1. Article 5 Preservation of cultural heritage 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, designated as such by their Member States to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, on condition that it is not feasible to acquire copies of them, for the sole purpose of the preservation of such works or other subject-matter and to the extent necessary for such preservation.
Amendment 648 #
Proposal for a directive
Article 5 – paragraph 1 – subparagraph 1 (new)
Article 5 – paragraph 1 – subparagraph 1 (new)
Works permanently in a collection are those works which are the property of the cultural heritage institution, and not works held under licence and accessible via a third-party server.
Amendment 653 #
Proposal for a directive
Article 5 – paragraph 1 a (new)
Article 5 – paragraph 1 a (new)
Automated image-referencing services may also fall within the scope of this exception for the purpose of the preservation of such works or subject- matter and to the extent necessary for such preservation.
Amendment 658 #
Proposal for a directive
Article 5 a (new)
Article 5 a (new)
Article 5a Use of extracts from pre-existing works and other subject-matter in content uploaded or made available by users (1) Member States shall provide for an exception to the rights provided for in Articles 2 and 3 of Directive 2001/29/EC, point (a) of Article 5 and Article 7(1) of Directive 96/9/EC, and point (a) of Article 4(1) of Directive 2009/24/EC in order to allow for the use of extracts from pre- existing works and other subject-matter in content uploaded or made available by users, other than in the course of their work, for purposes such as criticism, review, illustration, caricature, parody or pastiche, provided that the extracts: (a) relate to works or other subject-matter that have 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 Article shall be unenforceable. (3) This exception shall be without prejudice to the provisions of Article 13 of this Directive.
Amendment 672 #
Proposal for a directive
Article 6 – paragraph 1
Article 6 – paragraph 1
1. Accessing content covered by an exception provided for in this Directive shall not confer on users any entitlement to use it pursuant to another exception. 2. Article 5(5) and the first, third, fourth and fifth subparagraphs of Article 6(4) of Directive 2001/29/EC shall apply to the exceptions and the limitation provided for under this Title.
Amendment 723 #
Proposal for a directive
Article 10 – paragraph 1
Article 10 – paragraph 1
Member States shall ensure that where parties wishing to conclude an agreement for the purpose of making available audiovisual works on video-on-demand platforms face difficulties relating to the licensing of rights, they may rely on the assistance of an impartial body with relevant experience. That body shall provide assistance with negotiation and help reach agreements. This paragraph shall not apply to the licensing of copyrighted works and subject matter by the organisations referred to in Articles 3(a) et 2(3) of Directive 2014/26/EC.
Amendment 729 #
Proposal for a directive
Article 10 a (new)
Article 10 a (new)
Article 10a Member States shall require producers and the transferees of the rights to make every effort to ensure continuous exploitation of European audiovisual works, for example by making such works available to the public on video-on- demand platforms. Member States shall take appropriate measures to ensure compliance with the provisions of paragraph 1, for example by encouraging the conclusion of professional agreements between organisations representing authors, on the one hand, and producers and other stakeholders, on the other, as well as video-on-demand platforms, so as to ensure the continuous exploitation of audiovisual works.
Amendment 730 #
Proposal for a directive
Article 10 b (new)
Article 10 b (new)
Article 10b These provisions shall be without prejudice to the application of the rules relating to media chronology, the freedom of a producer or distributor to accord exclusive rights to the exploitation of the audiovisual works in question and the freedom of a broadcaster or on-demand video platform to acquire and distribute or make available on demand the works of its choice, in line with its editorial freedom and responsibility.
Amendment 737 #
Proposal for a directive
Article 11 – title
Article 11 – title
Protection of press publications concerning digital uses
Amendment 753 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Member States shall provide publishers of press publications and press agencies with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications.
Amendment 775 #
Proposal for a directive
Article 11 – paragraph 3
Article 11 – paragraph 3
3. Articles 5 to 8 of Directive 2001/29/EC and Directive 2012/28/EU shall apply mutatis mutandis in respect of the rights referred to in paragraph 1News aggregators shall use press agencies' and publishers' content and shall be responsible for the content that they make publicly available.
Amendment 776 #
Proposal for a directive
Article 11 – paragraph 3 a (new)
Article 11 – paragraph 3 a (new)
3a. Publishers and news agencies must also be safeguarded, by licensing arrangements for example, when it comes to the mass exploitation of their content, particularly with regard to content aggregators or rightholders.
Amendment 794 #
Proposal for a directive
Article 12 – paragraph 1 – subparagraph 1 (new)
Article 12 – paragraph 1 – subparagraph 1 (new)
Member States may provide for an exception or limitation to the rights referred to in Articles 2 and 3 of Directive 2001/29/EC so that works can be made available to the public by means of automated image referencing, provided that rightholders are compensated fairly.
Amendment 805 #
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 otheworks or subject-matter uploaded by their users
Amendment 808 #
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 ofoffer or make accessible to the public copyrighted works or subject- matter made available by their users, they shall conclude with rightholders so requesting licensing agreements for rights of reproduction and communication with public, unless they are eligible for the liability exemption provided for in Article 14 of Directive 2000/31/EC . Under the terms of the licensing agreements, these service providers shall, in cooperation with rightholders, take measures to ensure the proper functioning of agreements licensing the use of their works or other subject-matter. An information society service provider who fails to put in place technical measures quickly and efficiently to respond to requests from rightholders under this Article shall not benefit from the protection provided for in Article 14 (1) of Directive 2000/31/EC. Unless they are acting in a professional capacity, the liability of service users for copyright acts is covered by the licensing contracts concluded with the service providers. Information society service providers playing an active part but not required by rightholders to conclude a licensing agreement for works or other subject- matter uploaded by their usersstored by them and to which they provide public access shall, in cooperation with rightholders, take measures to prevent the availability on their services of works or other subject-matter identified by rightholders in cooperation with the service providers. Information society service providers eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC that nevertheless store and make available to the public a significant quantity of copyrighted works or other subject-matter shall, in cooperation with rightholders, take measures to ensure the proper 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 or 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 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. Rightholders, for their part, shall provide information society service providers with the necessary details to ensure the proper functioning of measures taken by the service providers.
Amendment 840 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. 2. Member States shall ensure that the service 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 1, for example regarding content uploaded by users and withdrawn by service providers for no valid reason. The rightholders concerned must deal with the complaint within a reasonable period and provide adequate justification for the rights claimed by them.
Amendment 849 #
Proposal for a directive
Article 13 – paragraph 2 a (new)
Article 13 – paragraph 2 a (new)
2a. Regarding disputes over the application of the measures referred to in paragraph 1, for example as regards the application of a possible exception or authorisation for use for the content concerned, such mechanisms may not unduly detract from the effectiveness of the measures referred to in paragraph 1.
Amendment 860 #
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. The Commission shall encourage the exchange of best practices across the European Union.
Amendment 873 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13a Member States shall provide that disputes between successors in title and information society services regarding the application of Article 13(1) may be subject to an alternative dispute resolution system. Member States shall establish or designate an impartial body with the necessary expertise, with the aim of helping the parties to settle their disputes under this system. The Member States shall inform the Commission of the establishment of this body no later than (date mentioned in Article 21(1)).
Amendment 876 #
Proposal for a directive
Chapter 4 a (new)
Chapter 4 a (new)
CHAPTER 2a PROTECTION OF AUDIOVISUAL AUTHORS FOR THE MAKING AVAILABLE OF THEIR WORKS Article -14 1. Member States shall provide that when an audiovisual author or performer has transferred his/her making available to the public right to a producer, that author or performer shall retain the right to obtain equitable remuneration that is proportionate to the revenues generated by the exploitation of the work, provided that these measures are not included in the initial contract. 2. That right to equitable and proportional remuneration shall be non-transferable and may not be waived.
Amendment 933 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Member States shall ensure that authors and performers are entitled to request additional, appropriate 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 or unexpected compared to the subsequent relevant revenues and benefits derived from the exploitation of the works or performances, provided that these measures are not included in the initial contract. Member States may provide that this right expires if it is not exercised within a reasonable period from the act of exploitation in question.
Amendment 992 #
Proposal for a directive
Article 17 – paragraph 2 a (new)
Article 17 – paragraph 2 a (new)
Directive 2001/29/EC
Article 12 – paragraph 4 – point g a (new)
Article 12 – paragraph 4 – point g a (new)
2a. In Article 12(4) the following point is added: "(ga) to add publishers and press agencies to the list of beneficiaries of related rights listed in Article 2 of Directive 2001/29/EC as regards the reproduction right."