PURPOSE: to modernise the EU copyright framework to adapt it to the current digital environment.

LEGISLATIVE ACT: Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.

CONTENT: the Directive lays down rules for further harmonisation of EU law applicable to copyright and related rights in the context of the internal market, taking into account digital and cross-border uses of protected content.

The reform shall adapt copyright rules to today's world, where music streaming services, video-on-demand platforms, news aggregators and user-uploaded-content platforms have become the main gateways to access creative works and press articles.

The new rules ensure adequate protection for authors and artists, while opening up new possibilities for online access to and sharing of copyright-protected content throughout the European Union. They cover the following aspects:

Adaptation of copyright exceptions to the digital and cross-border environment

The new Directive shall facilitate the use of copyright-protected material for research by introducing mandatory exceptions to copyright for the purpose of searching texts and data, online educational activities and the online preservation and dissemination of cultural heritage.

Licensing and wider access to digital content

The Directive also aims to improve licensing practices to ensure wider access to content by providing harmonised rules by facilitating: (i) the use of works not commercially available by cultural heritage institutions; (ii) the granting of collective licences with broad effect; (iii) the possibility of obtaining rights for films through video-on-demand platforms.

Right granted to press publishers

The Directive confers a new right on press publishers to use their press publications online. The creation of hyperlinks and the reuse of isolated words or very short extracts by online platforms and services shall be excluded from the scope of the new right granted to publishers of press publications.

In order to ensure that journalists derive economic benefits from the rights of newspaper publishers, the Directive provides that they shall receive an appropriate share of the income that press publishers receive from information society service providers for the use of their press publications.

Use of protected content

Online content sharing platforms shall in principle obtain permission from rights holders, for example by entering into a licensing agreement, to make protected works available to the public.

If no authorisation is granted, platforms would be responsible for unauthorised acts of communication to the public, including making copyrighted works available to the public, unless they demonstrate that: (i) they have made every effort to obtain authorisation and to ensure the unavailability of unauthorised content for which rights holders have provided necessary and relevant information, and (ii) they have acted promptly to remove any unauthorised content following receipt of a notification and do everything possible to prevent subsequent uploading.

Freedom of online expression

The Directive establishes safeguards for users by expressly allowing users to create and upload content free of charge for the purposes of quotation, criticism, review, caricature, parody and pastiche. Providers of online content sharing services shall put in place an effective complaints and redress mechanism to enable users to quickly challenge the unjustified removal by platforms of content they have put online.

Fair remuneration for authors and performers

The Directive shall increase transparency and balance in contractual relations between content creators (authors, performers) and their producers and publishers. Five measures to strengthen the position of authors, performers are planned:

- the principle of appropriate and proportionate remuneration for authors, performers;

- an obligation of transparency to promote access by authors, performers to better information on the exploitation of their works and performances;

- a mechanism for ajusting contracts so that authors, performers can obtain a fair share when the remuneration initially agreed becomes disproportionately low in relation to the success of their work or performance;

- a revocation mechanism enabling creators to recover their rights when their works are not exploited; and

- a dispute settlement procedure for authors and performers.

ENTRY INTO FORCE: 6.7.2019.

TRANSPOSITION: no later than 7.6.2021.

The European Parliament adopted by 348 votes to 274 with 36 abstentions a legislative resolution on the proposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market.

The draft legislative act aims to modernise certain aspects of the Union's copyright framework in order to ensure that the rights and obligations of copyright law also apply to the digital sphere.

The position of the European Parliament adopted at first reading under the ordinary legislative procedure has amended the Commission proposal as follows:

Adaptation of copyright exceptions to the digital and cross-border environment

The new directive would facilitate the use of copyright-protected material for research by introducing mandatory exceptions to copyright for the purpose of searching texts and data, online educational activities and the online preservation and dissemination of cultural heritage.

The directive would also aim to improve licensing practices to ensure wider access to content by providing harmonised rules by facilitating: (i) the use of works not commercially available by cultural heritage institutions; (ii) the granting of collective licences with broad effect; (iii) the possibility of obtaining rights for films through video-on-demand platforms.

Protection of press publications with regard to online uses

The directive would give a new right to press publishers for the digital use of their publications. The legal protection of press publications would benefit publishers who are established in a Member State and who have their registered office, central administration or principal place of business within the Union.

The rights provided for would not apply to private or non-commercial uses of press publications by individual users. Moreover, the protection granted would not apply to acts related to hyperlinks. The use of isolated words or very short extracts from press publications would not fall within the scope of the rights provided for by the directive.

Under the amended directive, authors of works included in a press publication should receive an appropriate share of the income that press publishers receive from information society service providers for the use of their press publications.

Use of protected content by online content sharing service providers

Online content sharing platforms should in principle obtain permission from rights holders, for example by entering into a licensing agreement, to make protected works available to the public. If no authorization is granted, platforms would be responsible for unauthorized acts of communication to the public, including the making available to the public of copyright-protected works.

The measures taken by the platforms should be without prejudice to the application of exceptions and limitations to copyright, in particular those which guarantee users' freedom of expression. Users would be allowed to post and make available user-generated content for the specific purposes of quotation, criticism, review, caricature, parody or pastiche.

Fair remuneration for authors and performers

Member States should ensure that, when authors and performers license or transfer their exclusive rights for the exploitation of their works or other subject-matter, they have the right to receive appropriate and proportional remuneration. To this end, Member States would be free to use different mechanisms and would take into account the principle of contractual freedom and a fair balance of rights and interests.

Transparency

Authors and performers should receive regularly - at least once a year - up-to-date, relevant and complete information on the exploitation of their works. They would have a right of revocation in the event of non-use of the work or any other protected object. Revocation could only be exercised after a reasonable period of time after the conclusion of the licence or rights transfer agreement.

Mechanism for adapting contracts

The amended text strengthens the negotiating rights of authors and performers. It gives them the right to claim from the party with whom they have concluded a contract for the exploitation of rights, appropriate and fair additional remuneration when the remuneration initially agreed is found to be unreasonably low in relation to all subsequent income derived from the exploitation of the works.

The European Parliament adopted by 428 votes to 226, with 39 abstentions, amendments to the proposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market.

The issue was referred back to the committee responsible for institutional negotiations.

The main amendments adopted in plenary concerned the following issues:

Protection of press publications concerning digital uses : the Directive shall create new rights to provide publishers of press publications so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers. The rights shall not prevent legitimate private and non-commercial use of press publications by individual users.

The rights shall not extend to mere hyperlinks which are accompanied by individual words . These rights shall expire 5 years after the publication of the press publication.

The amended text stipulates that Member States shall ensure that authors receive an appropriate share of the additional revenues press publishers receive for the use of a press publication by information society service providers.

Use of protected content by online content sharing service providers : online sharing platforms perform an act of communication to the public and shall be responsible for the content and shall therefore conclude fair and appropriate licensing agreements with rightholders.

Member States shall also ensure that users have access to an independent body for the resolution of disputes as well as to a court or another relevant judicial authority to assert the use of an exception or limitation to copyright rules.

As of the date of entry into force of this directive, the Commission and the Member States shall organise dialogues between stakeholders to harmonise and to define best practices and issue guidance to ensure the functioning of licensing agreements and on cooperation between online content sharing service providers and right holders for the use of their works or other subject matter within the meaning of this Directive. When defining best practices, special account shall be taken of fundamental rights, the use of exceptions and limitations as well as ensuring that the burden on SMEs remains appropriate and that automated blocking of content is avoided.

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.

Principle of fair and proportionate remuneration : Member States shall ensure that authors and performers receive fair and proportionate remuneration for the exploitation of their works and other subject matter, including for their online exploitation. This may be achieved in each sector through a combination of agreements, including collective bargaining agreements, and statutory remuneration mechanisms. Contracts shall specify the remuneration applicable to each mode of exploitation.

Member States shall ensure that authors and performers receive on a regular basis, not less than once a year , timely, accurate, relevant and comprehensive information on the exploitation of their works and performances from those to whom they have licensed or transferred their rights, notably as regards modes of exploitation, direct and indirect revenues generated, and remuneration due.

Negotiation rights of authors and performers : the amended text strengthens the negotiation rights of authors and performers. It allows them to claim additional 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 direct or indirect revenues and benefits derived from the exploitation of the works or performances.

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 audiovisual rights, they may rely on the assistance of an impartial body with relevant experience. The impartial body created or designated by the Member State for the purpose of this Article shall provide assistance to the parties with negotiation and help them to reach agreement.

To encourage the availability of audiovisual works on video-on-demand platforms, Member States shall foster dialogue between representative organisations of authors, producers, video-on-demand platforms and other relevant stakeholders.

Adapt exceptions and limitations to the digital and cross-border environment : the measures provided for would oblige Member States to provide for exceptions to the general copyright rules for reproductions and extractions of works or other subject-matter to which research organisations have lawful access and made in order to carry out text and data mining for the purposes of scientific research by such organisations .

Educational establishments and cultural heritage institutions that conduct scientific research should also be covered by the text and data mining exception, provided that the results of the research do not benefit an undertaking exercising a decisive influence upon such organisations in particular.

Access to Union publications : any electronic publication dealing with Union-related matters such as Union law, Union history and integration, Union policy and Union democracy, institutional and parliamentary affairs, and politics, that is made available to the public in the Union shall be subject to a Union Legal Deposit.

The Committee on Legal Affairs adopted the report by Axel VOSS (EPP, DE) on the proposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market.

The Committee on the Internal Market and Consumer Protection, exercising their prerogatives as associated committees in accordance with Article 54 of the Rules of Procedure, also gave their opinions on the report.

The committee responsible recommended that the European Parliament’s position adopted at first reading under the ordinary legislative procedure should amend the Commission proposal as follows.

Adapting exceptions and limitations to the digital and cross-border environment : the measures foreseen shall require Member States to provide exceptions to general copyright rules for the search of texts and data-mining for scientific research purposes, illustrations used for educational purposes and for cultural heritage institutions such as museums or libraries.

Educational establishments and cultural heritage institutions that conduct scientific research shall also be covered by the text and data mining exception provided that the results of the research do not benefit an undertaking exercising a decisive influence upon such organisations in particular. The reproductions and extractions made for text and data mining purposes should be stored in a secure manner and in a way that ensures that the copies are only used for the purpose of scientific research.

To encourage innovation also in the private sector, Member States shall be able to provide for an exception going further than the mandatory exception provided that the use of works and other subject matter referred to therein has not been expressly reserved by their rightholders including by machine readable means.

Principle of fair and proportionate remuneration : Member States shall ensure that authors and performers receive fair and proportionate remuneration for the exploitation of their works and other subject matter, including for their online exploitation . This may be achieved in each sector through a combination of agreements, including collective bargaining agreements, and statutory remuneration mechanisms. Contracts shall specify the remuneration applicable to each mode of exploitation.

Member States shall ensure that authors, performers receive, on a regular basis – not less than once a year - accurate, relevant and complete information on the exploitation of their works in a timely manner.

Member States shall ensure that where an author or a performer has licensed or transferred her or his rights concerning a work or other protected subject-matter on an exclusive basis, the author or performer has a right of revocation where there is an absence of exploitation of the work or other protected subject matter or where there is a continuous lack of regular reporting.

In addition, Member States shall ensure that an equitable proportion of the remuneration derived from the use of the right conferred on publishers is paid to journalists, authors and other right holders. Publishers of press publications shall receive fair and proportionate remuneration for the digital use of their press publications by information society service providers.

Negotiation rights of authors and performers : 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 audiovisual rights, they may rely on the assistance of an impartial body with relevant experience. The impartial body created or designated by the Member State shall provide assistance to the parties with negotiation and help them to reach agreement.

In order to encourage the continuous exploitation of audiovisual works on video-on-demand platforms, Member States shall foster dialogue between representative organisations of authors, producers, video-on-demand platforms and other relevant stakeholders.

Access to Union publications : any electronic publication dealing with Union-related matters such as Union law, Union history and integration, Union policy and Union democracy, institutional and parliamentary affairs, and politics, that is made available to the public in the Union shall be subject to a Union Legal Deposit.

PURPOSE: to modernise certain aspects of the Union copyright framework to take account of technological developments and new channels of distribution of protected content in the internal market

PROPOSED ACT: Directive of the European Parliament and of the Council.

ROLE OF THE EUROPEAN PARLIAMENT: the European Parliament decides in accordance with the ordinary legislative procedure and on an equal footing with Council.

BACKGROUND: 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 Commission communication entitled ‘ Towards a modern, more European copyright framework’ , in some areas it is necessary to adapt and supplement the current Union copyright framework to ensure that the internal market does not fragment.

In this context, the Commission has identified three areas of intervention with the aim of modernising the exceptions and limitations on copyright : (i) digital and cross-border uses in the field of education, (ii) text and data mining in the field of scientific research, and (iii) preservation of cultural heritage. The objective is to guarantee the legality of certain types of uses in these fields, including across borders.

Evolution of digital technologies has reinforced the role of the Internet as the main marketplace for the distribution and access to copyright-protected content. In this new framework, rightholders face difficulties when seeking to license their rights and be remunerated for the online distribution of their works.

Accordingly, it is necessary to provide for measures aiming at improving the position of rightholders to negotiate and be remunerated for the exploitation of their content by online services giving access to user-uploaded content. A fair sharing of value is also necessary to ensure the sustainability of the press publications sector.

This proposal is presented in parallel with :

a proposal for a regulation of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes; a proposal for a regulation and a directive to implement the Marrakech treaty in order to improve access to format copies of certain works for the benefit of persons who are blind, visually impaired or otherwise print disabled.

IMPACT ASSESSMENT: the impact assessment examines the baseline scenarios, policy options and their impacts for eight topics regrouped under three chapters, namely (i) ensuring wider access to content, (ii) adapting exceptions to digital and cross-border environment and (iii) achieving a well-functioning marketplace for copyright.

The assessment concluded that, bearing in mind the predominance of SMEs in the creative sectors, the introduction of a special regime would not be appropriate, as it would defeat the purpose of the intervention.

CONTENT: complementing Directive 2010/13/EU and the proposal amending it, this draft directive lays down rules which aim at further harmonising the Union law applicable to copyright and related rights in the framework of the internal market, taking into account in particular digital and cross-border uses of protected content. It also lays down rules on exceptions and limitations, on the facilitation of licences as well as rules aiming at ensuring a well-functioning marketplace for the exploitation of works and other subject matter.

Measures to adapt exceptions and limitations to the digital and cross-border environment : Member States are obliged to provide for mandatory exceptions or a limitation allowing:

text and data mining carried out by research organisations for the purposes of scientific research; digital uses of works and other subject-matter for the sole purpose of illustration for teaching, enabling teachers and students will be able to take full advantage of digital technologies; and cultural heritage institutions ((i.e. publicly accessible libraries or museums, archives or film or audio heritage institutions) to make copies of works and other subject-matter that are permanently in their collections to the extent necessary for their preservation.

Measures to improve licensing practices and ensure wider access to content: the proposal requires Member States to:

put in place a legal mechanism to facilitate licensing agreements of out-of-commerce works and other subject-matter; the cross-border effects will be ensured; put in place a stakeholder dialogue on issues relating to foster the relevance and usability of the licensing mechanisms and ensure the effectiveness of the safeguards for rightholders; put in place a negotiation mechanism to facilitate negotiations on the online exploitation of audiovisual works.

Measures to achieve a well-functioning marketplace for copyright : the proposal provides for:

a new right for press publishers aiming at facilitating online licensing of their publications, the recoupment of their investment and the enforcement of their rights; the rights granted to the publishers of press publications 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; the possibility for all publishers to receive a share in the compensation for uses of works under an exception; measures to improve transparency and better balanced contractual relationships between authors and performers and those to whom they assign their rights; the obligation for Member States to implement negotiation and dispute resolution mechanisms.