Council of the European Union Brussels, 17 January 2019 (OR. en) 5138/19 Interinstitutional File: 2016/0280(COD) LIMITE PI 3 AUDIO 1 COMPET 19 CULT 5 RECH 13 TELECOM 5 CODEC 42 DIGIT 3 EDUC 8 NOTE From: To: Presidency Permanent Representatives Committee No. prev. doc.: No. Cion doc.: WK 15629/2018, WK 421/2018, WK 422/2019 12254/16 Subject: Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market - Update of negotiating mandate I. INTRODUCTION On 25 May 2018, COREPER granted the Presidency a mandate (9134/18) to start negotiations with the European Parliament (EP) on the above-mentioned proposal with a view to reaching a first reading agreement. The EP adopted its negotiating mandate on 12 September 2018 (11520/18). Trilogue negotiations started on 2 October 2018. Four more trilogues (on 25 October, 26 November, 3 and 13 December 2018), as well was a number of technical meetings were held. The 6th political trilogue scheduled for 21 January 2019 is intended to be the final trilogue at which an overall compromise on the proposed Directive should be reached in order to allow for an adoption of the proposed Directive in the current legislative term. 5138/19 BM/ ECOMP 3.B. LIMITE 1 EN In the negotiations held so far, provisional agreement has been achieved between the co-legislators on large parts of the proposed Directive (see green rows of the text set out in the 4th column of the 4-column table attached to this note). As always, this provisional agreement is based on the understanding that "nothing is agreed until everything is agreed". No final agreement could yet be reached on the following issues that will be the essential elements for a final compromise: remaining open issues in Article 11 (non-substantial parts ("snippets") of press publications, term of protection, and authors’ participation in the remuneration of press publishers); remaining open issues in Article 13 (in particular the mitigation of liability, stay down, treatment of user generated content uploaded by users (UGC), and the treatment of micro and small and medium sized enterprises); Article minus 14 (appropriate and proportionate remuneration), Article 16a of the EP text (revocation right); Article 3a (optional or mandatory nature). Taking into account the discussions held with Copyright Attachés on 9 and 15 January 2019, the Presidency has prepared compromise proposals on all those matters (see part II of this note), which will be the core elements of a final compromise package. The Presidency asks COREPER to provide a mandate as flexible as possible on those issues so that an overall compromise can be achieved at the upcoming trilogue. As the trilogue on 21 January 2019 is intended to be the final one, also other remaining issues (still in yellow in the 4-column table), and the text of the recitals need to be agreed. To prepare for the trilogue on those other issues and the recitals, a technical meeting was held with the EP on 17 January 2019 in the evening. The Presidency will report the results of this technical meeting to COREPER orally. 5138/19 BM/ ECOMP 3.B. LIMITE 2 EN II. PRESIDENCY SUGGESTIONS (a) Press publisher's rights (Article 11) With a view to bridging the differences between the EP’s and the Council's position on the highly controversial issue of the treatment of insubstantial parts (“snippets”) of press publications, the Presidency asks COREPER whether it could accept, in a spirit of compromise, going into the direction of a moderate quantitative approach that would take a middle way between the Council mandate and the EP text and exclude from the protection of the press publishers’ right “individual words and very short extracts of a press publication” (see the compromise wording in the second subparagraph of Article 11(1), row 219). Under the Presidency proposal, this compromise would be accompanied by recital language along the lines of the revised wording in recital (34a), row 72. As to Article 11(4a) on the authors share of press publishers' remuneration, the compromise text as prepared at the 5th trilogue was not changed (see row 226), which is accompanied by recital (35), row 226). As regards the term of protection, the Presidency asks COREPER to grant it with the flexibility for going up to two years (Article 11(4), row 225), if this is required to achieve an overall compromise with the EP. (b) Value gap (Article 13) The Presidency compromise proposal on Article 13 took as starting point the text prepared at the 5th trilogue (WK15629/18, row 237A). Based on the Member States comments at the Attachés meetings on 9 and 15 January, the Presidency brought the provisions on the mitigation of liability (Article 13(4)) and stay down (previous Article 13(6)), closer to the Council mandate adopted by COREPER in May 2018. This revised text of Article 13(4a) and (4a) as set out in row 237A of the 4-column document annexed to this note, and highlighted in grey shade) was broadly supported by delegations. To address remaining concerns expressed by delegations on Attachés level, some adaptations were introduced in the recitals (38d) and (39a) (see the text changes highlighted in grey shade in rows 85 and 87). In particular, recital (38d) now explicitly clarifies that uploads by users are covered by the scope of the authorisations given to the online content sharing services. And, in order to clarify that no 'double licencing'/'double payment' is required, this recital also clarifies that any authorisation that users 5138/19 BM/ ECOMP 3.B. LIMITE 3 EN obtained for sharing copyright protected content on such platforms also authorises the communication to the public by the platform. To address the divergent views expressed on the UGC, the Presidency proposes as a compromise a closed list of exceptions based on the existing exceptions under the Infor-Soc Directive 29/2001/EC (see changes made to Article 13(5), row 237A, and the related recital (39a), row 87). As to the treatment of SMEs, Member States had diverging views on the question as to whether there should be a carve-out in the definition of 'online content sharing service provider' in Article 2(5), or whether the size of the platform should only be taken into account in the proportionality criterion in the duty of care requirement of Article 13(4a). With a view to being able to go into direction of the EP on this point, the Presidency asks Member States for their utmost flexibility towards a carve out in Article 2(5). Taking up the suggestion of some Member States this could be combined with addressing this carve-out in the review clause (Article 22). (c) Remuneration Chapter As a result of the trilogue on 13 December 2018, proposals for compromise texts on Article minus 14 (principle of fair remuneration) and Article 16a (revocation right) emerged, which are very much in line with the texts that were presented to COREPER on 12 December 2018. The Presidency is conscious of the fact that accepting these two provisions would be a very large step for the Council and, as Member States have emphasised at various occasions, can only be given to the EP as concession if, in return, concessions of equal importance are made by the EP, in particular on Articles 11 and 13. (i) Article minus 14 (principle of fair remuneration) For being able to go into the direction of the EP on this point in the context of an overall final compromise, the Presidency asks COREPER to confirm its acceptance for the wording of Article minus 14 as set it in rows 262 to 266 of the 4th column, including the term "proportionate" (in addition to the term "appropriate") remuneration, and to support the recitals in row 90 clarifying that the principle does not prevent licencing for free (see horizontal recital (43b)) or lump sum remuneration (recital (39y)). To address delegations' comments, adaptations have been made to that recital, in particular to further clarify the aspects that can/should be taken in account for considering a lump sum payment as a "proportionate" remuneration (see the text changes highlighted in grey shade in row 90). 5138/19 BM/ ECOMP 3.B. LIMITE 4 EN (ii) Article 16a (revocation right) For being able to go into the direction of the EP on this point in the context of an overall final compromise, the Presidency asks COREPER to confirm its acceptance for a revocation right in situations of absence of exploitation on the basis of the wording for Article 16a as set it in rows 284 and 288 of the 4th column, including the paragraphs 4 and 5 in row 288, and the related recital (43a), row 97. As is clear from the COREPER mandate given in December 2018, the Presidency will not accept a revocation right for lack of reporting. On the basis of the discussions at Attachés level, recital (43a) was slightly adapted to clarify that the legitimate interests of licensees and transferees should also be taken into account when setting the procedures and possible time frames for the revocation mechanism (see text highlighted in grey shade in row 97). (iii) Other changes On the basis of the discussions at Attachés level, a new horizontal recital (39x) relating to the whole remuneration Chapter was added to clarify that the Chapter applies only to exploitation contracts (see row 90). Exclusion of software developers: In the discussions at COREPER and Attachés level the suggestion was made to exclude software developers from the remuneration Chapter, arguing that software developers were typically subject to different contract models than artists and performers, had a stronger negotiation power for their remuneration and would consequently not require the special protection provided for by the remuneration Chapter. At the Attachés meeting on 15 January 2019, the wording proposed by the Presidency for such an exception was supported by several delegations. It is therefore suggested that this exception is included as a new paragraph 2 in Article 16a (Council text - 'Common provisions'), row 283. (d) Optional exception or limitation for text and data mining (Article 3a) It is recalled that both co-legislators have drafted the exception or limitation for text and data mining for purposes other than scientific research, which is an exception that was not contained in the initial Commission proposal, as an optional exception. In the trilogue negotiations the Commission requested to turn Article 3a into a mandatory provision with a view to avoiding fragmentation in the DSM. COREPER addressed this issue at its meeting on 23 November 2018. 5138/19 BM/ ECOMP 3.B. LIMITE 5 EN This issue has not been finalised in the trilogue negotiations, as the EP required further internal reflections, and the decision was left to the final compromise package. With a view to providing the Presidency with an overall mandate for the trilogue on 21 January 2019, the Presidency invites COREPER to confirm whether in an overall compromise package the Presidency can show flexibility to making Article 3a a mandatory provision in case the EP requests such change. III. CONCLUSION In the light of the above, the Presidency invites COREPER to update the negotiating mandate as suggested in point II of this note and support the compromise texts along the lines of the wording set out in the 4th column of 4-column table attached to this note as negotiating basis for the Presidency at the trilogue on 21 January 2019, and to grant the Presidency with the necessary flexibility where minor concessions turn out to be necessary for achieving the overall final outcome in the negotiations. 5138/19 BM/ ECOMP 3.B. LIMITE 6 EN Row 1. Proposal for a directive of the European Parliament and of the Council on copyright in the Digital Single Market COM (2016) 593 final - 2016/0280 (COD) PART 1: CITATIONS AND RECITALS EP TEXT ANNEX Proposal for a POSSIBLE COMPROMISE SOLUTION Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 9134/18 COUNCIL TEXT Cell in green: The text can be deemed as already agreed Cell in yellow: The issue needs further discussion at technical level Cell in red: The issue needs further discussion in depth at the trilogue meetings COMMISSION PROPOSAL P8_TA-PROV(2018)0337 Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL A8-0245/2018 Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL COM(2016)593 DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 7 on copyright in the Digital Single Market BM/ EN on copyright in the Digital Single Market LIMITE on copyright in the Digital Single Market ECOMP 3.B. on copyright in the Digital Single Market 5138/19 ANNEX COMMISSION PROPOSAL EP TEXT P8_TA-PROV(2018)0337 COUNCIL TEXT THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, (Text with EEA relevance) Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, (Text with EEA relevance) Having regard to the proposal from the European Commission, Having regard to the Treaty on the Functioning of the European Union, and in particular Article Articles 53(1), 62 and 114 thereof THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, (Text with EEA relevance) Having regard to the proposal from the European Commission, Having regard to the Treaty on the Functioning of the European Union, and in particular Article Articles 53(1), 62 and 114 thereof, THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, (Text with EEA relevance) POSSIBLE COMPROMISE SOLUTION 2. Having regard to the Treaty on the Functioning of the European Union, and in particular Article 114 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, 9134/18 3. Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee1, Row 4. After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee1, A8-0245/2018 5. After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee1, COM(2016)593 6. Having regard to the opinion of the European Economic and Social Committee1, Having regard to the opinion of 8 Having regard to the opinion of BM/ EN Having regard to the opinion of LIMITE Having regard to the opinion of OJ C , , p. . ECOMP 3.B. 7. 1 5138/19 ANNEX COMMISSION PROPOSAL EP TEXT P8_TA-PROV(2018)0337 COUNCIL TEXT the Committee of the Regions2, Acting in accordance with the ordinary legislative procedure, the Committee of the Regions2, Whereas: Acting in accordance with the ordinary legislative procedure, the Committee of the Regions2, Whereas: Acting in accordance with the ordinary legislative procedure, the Committee of the Regions2, POSSIBLE COMPROMISE SOLUTION Acting in accordance with the ordinary legislative procedure, Whereas: (1) The Treaty provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Harmonisation of the laws of the Member States on copyright and related rights should contribute further to the achievement of those objectives. 9134/18 8. Whereas: (1) The Treaty provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Harmonisation of the laws of the Member States on copyright and related rights should contribute further to the achievement of those objectives. Row 9. (1) The Treaty provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Harmonisation of the laws of the Member States on copyright and related rights should contribute further to the achievement of those objectives. A8-0245/2018 10. (1) The Treaty provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted. Harmonisation of the laws of the Member States on copyright and related rights should contribute further to the achievement of those objectives. COM(2016)593 11. 9 (2) The directives which have been adopted in the area of copyright and related rights contribute to the functioning of the internal market, provide for a high level of protection for rightholders, facilitate the BM/ EN (2) The directivesDirectives which have been adopted in the area of copyright and related rights provide for a high level of protection for rightholders and create a framework wherein the exploitation of works and other LIMITE (2) The directives which have been adopted in the area of copyright and related rights contribute to the functioning of the internal market, provide for a high level of protection for rightholders, facilitate the OJ C , , p. . ECOMP 3.B. (2) The directives which have been adopted in the area of copyright and related rights provide for a high level of protection for rightholders and create a framework wherein the exploitation of works and other 2 5138/19 ANNEX Row COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION LIMITE BM/ EN 10 protected subject-matter can take clearance of rights and create a place. This harmonised legal framework wherein the framework contributes to the exploitation of works and other good functioning of the internal protected subject-matter can take market; it stimulates innovation, place. This harmonised legal creativity, investment and framework contributes to the production of new content, also in good functioning of the internal the digital environment. The market; it stimulates innovation, protection provided by this legal creativity, investment and framework also contributes to the production of new content, also in Union's objective of respecting the digital environment, with a and promoting cultural diversity view to avoiding fragmentation while at the same time bringing of the internal market. The the European common cultural protection provided by this legal heritage to the fore. Article framework also contributes to the 167(4) of the Treaty on the Union's objective of respecting Functioning of the European and promoting cultural diversity Union requires the Union to take while at the same time bringing cultural aspects into account in its the European common cultural action. heritage to the fore. Article 167(4) of the Treaty on the Functioning of the European Union requires the Union to take cultural aspects into account in its action. ECOMP 3.B. protected subject-matter can take clearance of rights and create a place. This harmonised legal framework wherein the framework contributes to the exploitation of works and other good functioning of the internal protected subject-matter can take market; it stimulates innovation, place. This harmonised legal creativity, investment and framework contributes to the production of new content, also in good functioning of the a truly the digital environment. The integrated internal market; it protection provided by this legal stimulates innovation, creativity, framework also contributes to the investment and production of new Union's objective of respecting content, also in the digital and promoting cultural diversity environment, with a view to while at the same time bringing avoiding fragmentation of the the European common cultural internal market. The protection heritage to the fore. Article provided by this legal framework 167(4) of the Treaty on the also contributes to the Union's Functioning of the European objective of respecting and Union requires the Union to take promoting cultural diversity while cultural aspects into account in its at the same time bringing the action. European common cultural heritage to the fore. Article 167(4) of the Treaty on the Functioning of the European Union requires the Union to take cultural aspects into account in its action. 5138/19 ANNEX Row 12. 3 COMMISSION PROPOSAL COM(2016)593 (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’3, in some areas it is necessary to adapt and supplement the current Union copyright framework. This Directive provides for rules to COM(2015) 626 final. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (3) Rapid technological developments continue to transform the way works and other subject-matter are created, produced, distributed and exploited, and relevant legislation needs to be future proof so as not to restrict technological development. New business models and new actors continue to emerge. The objectives and the principles laid down by the Union copyright framework remain sound. However, legal uncertainty remains, for both rightholders and users, as regards certain uses, including cross-border uses, of works and other subject-matter in the digital environment. As set out in the Communication of the Commission entitled 'Towards a modern, more European copyright framework'3, in some COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 11 (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. Relevant legislation needs to be future proof so as not to restrict technological development. 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 crossborder 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'3, in some LIMITE (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’3, in some areas it is necessary to adapt and supplement the current Union copyright framework. keeping a high level of protection of ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION LIMITE BM/ EN 12 areas it is necessary to adapt and copyright and related rights. This Directive provides for rules supplement the current Union to adapt certain exceptions and copyright framework keeping a limitations to digital and crosshigh level of protection of border environments, as well as copyright and related rights. This measures to facilitate certain Directive provides for rules to licensing practices as regards the adapt certain exceptions and dissemination of out-oflimitations to digital and crosscommerce works and the online border environments, as well as availability of audiovisual works measures to facilitate certain on video-on-demand platforms licensing practices notably but with a view to ensuring wider not only as regards the access to content. In order to dissemination of out-ofachieve a well-functioning commerce works and the online marketplace for copyright, there availability of audiovisual works should also be rules on rights in on video-on-demand platforms publications, on the use of works with a view to ensuring wider and other subject-matter by online access to content. It also contains service providers storing and rules to facilitate the use of giving access to user uploaded content in the public domain. In content and on the transparency order to achieve a wellof authors' and performers' functioning and fair marketplace contracts. 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 ECOMP 3.B. adapt certain exceptions and areas it is necessary to adapt and limitations to digital and crosssupplement the current Union border environments, as well as copyright framework. This measures to facilitate certain Directive provides for rules to licensing practices as regards the adapt certain exceptions and dissemination of out-oflimitations to digital and crosscommerce works and the online border environments, as well as availability of audiovisual works measures to facilitate certain on video-on-demand platforms licensing practices as regards the with a view to ensuring wider dissemination of out-ofaccess to content. In order to commerce works and the online achieve a well-functioning availability of audiovisual works marketplace for copyright, there on video-on-demand platforms should also be rules on rights in with a view to ensuring wider publications, on the use of works access to content. In order to and other subject-matter by online achieve a well-functioning and service providers storing and fair marketplace for copyright, giving access to user uploaded there should also be rules on content and on the transparency rights in publications, on the of authors' and performers' exercise and enforcement of the contracts. use of works and other subjectmatter by on online service providers storing and giving access to user uploaded content providers’ platforms and on the transparency of authors' and performers' contracts and of the 5138/19 ANNEX Row 13. 4 5 6 COMMISSION PROPOSAL COM(2016)593 (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 Council4, Directive 2001/29/EC of the European Parliament and of the Council6, Directive 2006/115/EC of the European Parliament and of the EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 accounting linked with the exploitation of protected works in accordance with those contracts. (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 Council4, Directive 2000/31/EC of the European Parliament and of the Council5, Directive 2001/29/EC of the European Parliament and of the Council6 , COUNCIL TEXT 9134/18 (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 Council4, Directive 2000/31/EC of the European Parliament and of the Council5, Directive 2001/29/EC of the European Parliament and of the ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION access to user uploaded content, on the transparency of authors' and performers' contracts, on authors’ and performers’ remuneration, as well as a mechanism for the revocation of the rights that authors and performers have transferred on an exclusive basis. (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 Council4, Directive 2000/31/EC of the European Parliament and of the Council5, Directive 2001/29/EC of the European Parliament and of the Council6 , LIMITE BM/ EN 13 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). Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ L 178, 17.07.2000, p. 1–16). 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). 5138/19 ANNEX Row 14. COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (5) In the fields of research, innovation, education and preservation of cultural heritage, digital technologies permit new types of uses that are not clearly covered by the current Union rules on exceptions and Council7, Directive 2009/24/EC Directive 2006/115/EC of the of the European Parliament and of European Parliament and of the the Council8, Directive Council7, Directive 2009/24/EC 2012/28/EU of the European of the European Parliament and of Parliament and of the Council9 the Council8, Directive and Directive 2014/26/EU of the 2012/28/EU of the European European Parliament and of the Parliament and of the Council9 Council10. and Directive 2014/26/EU of the European Parliament and of the Council10. (5) In the fields of research, education and preservation of cultural heritage, digital technologies permit new types of uses that are not clearly covered by the current Union rules on exceptions and limitations. In COUNCIL TEXT Directive 2006/115/EC of the European Parliament and of the Council7, Directive 2009/24/EC of the European Parliament and of the Council8, Directive 2012/28/EU of the European Parliament and of the Council9 and Directive 2014/26/EU of the European Parliament and of the Council10. POSSIBLE COMPROMISE SOLUTION Council6, Directive 2006/115/EC of the European Parliament and of the Council7, Directive 2009/24/EC of the European Parliament and of the Council8, Directive 2012/28/EU of the European Parliament and of the Council9 and Directive 2014/26/EU of the European Parliament and of the Council10. (5) In the fields of research, innovation, education and preservation of cultural heritage, digital technologies permit new types of uses that are not clearly covered by the current Union rules on exceptions and 9134/18 (5) In the fields of research, education and preservation of cultural heritage, digital technologies permit new types of uses that are not clearly covered by the current Union rules on exceptions and limitations. In 14 7 BM/ EN 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). LIMITE 8 9 10 ECOMP 3.B. 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). 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). 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). 5138/19 ANNEX Row COMMISSION PROPOSAL COM(2016)593 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 impact 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 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 preservation of cultural heritage should be introduced. For uses not covered by the exceptions or the limitation 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 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 impact 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 innovation, scientific research, teaching and preservation of cultural heritage should be reassessed in the light of those new uses. Mandatory exceptions or limitations for uses of text and data mining technologies in the field of innovation and scientific research, illustration for teaching in the digital environment and for preservation of cultural heritage should be introduced. For uses COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 15 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 impact 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 innovation, scientific research, teaching and preservation of cultural heritage should be reassessed 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 preservation of cultural heritage should be introduced. For uses not covered LIMITE 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 impact 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 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 preservation of cultural heritage should be introduced. For uses not covered by the exceptions or the limitation ECOMP 3.B. Row 15. COMMISSION PROPOSAL COM(2016)593 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. (6) The exceptions and the limitation set out in this Directive seek to achieve a fair balance 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 not covered by the exceptions or the limitation provided for in this Directive, the exceptions and limitations existing in Union law should continue to apply. Therefore, existing wellfunctioning exceptions in those fields should be allowed to continue to be available in Member States, as long as they do not restrict the scope of the exceptions or limitations provided for in this Directive. Directives 96/9/EC and 2001/29/EC should be adapted. (6) The exceptions and the limitation limitations set out in this Directive seek to achieve a COUNCIL TEXT 9134/18 provided for in this Directive, theThe exceptions and limitations existing in Union law should continue to apply, including to text and data mining, education and preservation activities, as long as they do not limit the scope of the mandatory exceptions laid down in this Directive and on condition that their application does not adversely affect nor circumvent the mandatory rules set out in this Directive. Directives 96/9/EC and 2001/29/EC should be adapted. POSSIBLE COMPROMISE SOLUTION by the exceptions or the limitation provided for in this Directive, theThe exceptions and limitations existing in Union law should continue to apply, including to text and data mining, education and preservation activities, as long as they do not limit the scope of the mandatory exceptions laid down in this Directive, which need to be implemented by Member States in their national law, and on condition that their application does not adversely affect nor circumvent the mandatory rules set out in this Directive. Directives 96/9/EC and 2001/29/EC should be adapted. *[possibly to be adapted depending on the outcome on Article 3a] BM/ EN 16 (6) The exceptions and limitations set outprovided for in this Directive seek to achieve a LIMITE (6) The exceptions and the limitation set outprovided for in this Directive seek to achieve a ECOMP 3.B. Row 16. COMMISSION PROPOSAL EP TEXT P8_TA-PROV(2018)0337 COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION fair balance between the rights and interests of authors and other rightholders on the one hand, and of users on the other. They can be applied only in certain special cases which do not conflict with the normal exploitation of the works or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholders. 9134/18 fair balance between the rights and interests of authors and other rightholders on the one hand, and of users on the other. They can be applied only in certain special cases which do not conflict with the normal exploitation of the works or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholders. A8-0245/2018 fair balance between the rights and interests of authors and other rightholders on the one hand, and of users on the other. They can be applied only in certain special cases which do not conflict with the normal exploitation of the works or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholders. COM(2016)593 between the rights and interests of authors and other rightholders on the one hand, and of users on the other. They can be applied only in certain special cases which do not conflict with the normal exploitation of the works or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholders. 17 (7) The protection of technological measures established in Directive 2001/29/EC remains essential to ensure the protection and the effective exercise of the rights granted to authors and to other rightholders under Union law. This protection should be maintained while ensuring that the use of technological measures does not prevent the enjoyment of the exceptions and limitations established in this Directive, which are particularly relevant in BM/ EN (7) The protection of technological measures established in Directive 2001/29/EC remains essential to ensure the protection and the effective exercise of the rights granted to authors and to other rightholders under Union law. This protection should be maintained while ensuring that the use of technological measures does not prevent the enjoyment of the exceptions and the limitation established in this Directive, which are particularly relevant in LIMITE (7) The protection of technological measures established in Directive 2001/29/EC remains essential to ensure the protection and the effective exercise of the rights granted to authors and to other rightholders under Union law. This protection should be maintained while ensuring that the use of technological measures does not prevent the enjoyment of the exceptions and the limitation established in this Directive, which are particularly relevant in ECOMP 3.B. (7) The protection of technological measures established in Directive 2001/29/EC remains essential to ensure the protection and the effective exercise of the rights granted to authors and to other rightholders under Union law. This protection should be maintained while ensuring that the use of technological measures does not prevent the enjoyment of the exceptions and the limitation established in this Directive, which are particularly relevant in 5138/19 ANNEX Row 17. COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION the online environment.. Rightholders should have the opportunity to ensure this through voluntary measures. They should remain free to choose the format and the modalities to provideappropriate means of enabling the beneficiaries of the exceptions and limitations established in this Directive with the means to benefit from them provided that such means are appropriate. In the absence of voluntary measures, Member States should take appropriate measures in accordance with the first subparagraph of Article 6(4) of Directive 2001/29/EC, including where works and other subject-matter are made available through on-demand services. BM/ EN 18 (8) New technologies enable the automated computational analysis of information in digital form, such as text, sounds, LIMITE (8) New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images ECOMP 3.B. (8) New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images or the online environment. the online environment. the online environment.. Rightholders should have the Rightholders should have the Rightholders should have the opportunity to ensure this through opportunity to ensure this through opportunity to ensure this through voluntary measures. They should voluntary measures. They should voluntary measures. They should remain free to choose the format remain free to choose the format remain free to choose the format and the modalities to provide the and the modalities to provide the and the modalities to beneficiaries of the exceptions beneficiaries of the exceptions provideappropriate means of and the limitation established in and the limitation established in enabling the beneficiaries of the this Directive with the means to this Directive with the means to exceptions and the limitation benefit from them provided that benefit from them provided that established in this Directive with such means are appropriate. In the such means are appropriate. In the the means to benefit from them absence of voluntary measures, absence of voluntary measures, provided that such means are Member States should take Member States should take appropriate. In the absence of appropriate measures in appropriate measures in voluntary measures, Member accordance with the first accordance with the first States should take appropriate subparagraph of Article 6(4) of subparagraph of Article 6(4) of measures in accordance with the Directive 2001/29/EC. Directive 2001/29/EC. first subparagraph of Article 6(4) of Directive 2001/29/EC, including where works and other subject-matter are made available through on-demand services. (8) New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images 5138/19 ANNEX Row COMMISSION PROPOSAL COM(2016)593 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 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 data, generally known as text and data mining. Those technologies allow researchers to process Text and data mining allows the reading and analysis of large amounts of digitally stored 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 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 19 images or data, generally known as text and data mining. Text and data mining allows the processing of large amounts of information with a view to gaining new knowledge and discovering 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 support innovation. These technologies benefit universities and other research organisations as well as cultural heritage institutions, which may also carry out research in the context of their main activities. However, in the Union, such organisations and institutions 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 LIMITE or data, generally known as text and data mining. Those technologies allow researchers to process large amounts of information with a view to gaingaining new knowledge and discoverdiscovering 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 encouragesupport innovation. However, in the Union, These technologies benefit research organisations such as universities and well as cultural heritage institutions, which may also carry out research institutesin the context of their main activities. However, in the Union, such organisations and institutions are confronted with legal uncertainty as to the extent to which they can perform text ECOMP 3.B. Row 18. COMMISSION PROPOSAL COM(2016)593 database. Where there is no exception or limitation which applies, an authorisation to undertake such acts would be required from rightholders. Text and data mining may also be carried out in relation to mere facts or data which are not protected by copyright and in such instances no authorisation would be required. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 or other subject-matter and/or the extraction of contents from a database. Where there is no exception or limitation which applies, an authorisation to undertake such acts would be required from rightholders. Text and data mining may also be carried out in relation to mere facts or data which are not protected by copyright and in such instances no authorisation would be required. COUNCIL TEXT 9134/18 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. [Last phrase of recital (8) of the COM proposal was moved to new recital (8a) Council's text -see following row 18] POSSIBLE COMPROMISE SOLUTION 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, which for example happens when the data is normalised in the process of text and data mining. Where there is no exception or limitation which applies, an authorisation to undertake such acts would be required from rightholders. BM/ EN 20 (8a) Text and data mining may also be carried out in relation to mere facts or data which are not protected by copyright and in such instances no authorisation is required under copyright law. There may also be instances of text and data mining which do not LIMITE (8a) Text and data mining may also be carried out in relation to mere facts or data which are not protected by copyright and in such instances no authorisation would be is required under copyright law. There may also be instances of text and data ECOMP 3.B. Row 19. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (8a) For text and data mining to occur, it is in most cases necessary first to access information and then to reproduce it. It is generally only after that information is COUNCIL TEXT 9134/18 mining which do not involve acts of reproduction or where the reproductions made fall under the The new exception should be without prejudice to the existing mandatory exception for temporary acts of reproduction laid down in Article 5(1) of Directive 2001/29/EC, which should continue to apply to text and data mining techniques which do not involve the making of copies beyond the scope of that exception. POSSIBLE COMPROMISE SOLUTION involve acts of reproduction or where the reproductions made fall under the mandatory exception for temporary acts of reproduction laid down in Article 5(1) of Directive 2001/29/EC, which should continue to apply to text and data mining techniques which do not involve the making of copies beyond the scope of that exception. BM/ EN 21 [deleted] LIMITE [First phrase of new recital (8a) was taken from recital (8) (last phrase), second phrase of new recital (8a) was taken from recital (10) (second phrase)] ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 normalised that it can be processed through text and data mining. Once there is lawful access to information, it is when that information is being normalised that a copyrightprotected use takes place, since this leads to a reproduction by changing the format of the information or by extracting it from a database into a format that can be subjected to text and data mining. The copyrightrelevant 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 accessing and the process by which information is normalised to enable its automated computational analysis, insofar as this process involves extraction from a database or reproductions. The ECOMP 3.B. 22 POSSIBLE COMPROMISE SOLUTION BM/ EN COUNCIL TEXT 9134/18 LIMITE Row 20. COMMISSION PROPOSAL COM(2016)593 (9) Union law already provides certain exceptions and limitations covering uses for scientific research purposes which may apply to acts of text and data mining. However, those exceptions and limitations are optional and not fully adapted to the use of technologies in scientific research. Moreover, where researchers have lawful access to content, for example through subscriptions to publications or open access 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 exceptions for text and data mining purposes provided for in this Directive should be understood as referring to such copyright-relevant processes necessary to enable text and data mining. Where existing copyright law has been inapplicable to uses of text and data mining, such uses should remain unaffected by this Directive. (9) Union law already provides certain exceptions and limitations covering uses for scientific research purposes which may apply to acts of text and data mining. However, those exceptions and limitations are optional and not fully adapted to the use of technologies in scientific research. Moreover, where researchers have lawful access to content, for example through subscriptions to publications or open access COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 23 (9) Union law provides for certain exceptions and limitations covering uses for scientific research purposes which may apply to acts of text and data mining. However, those exceptions and limitations are optional and not fully adapted to the use of technologies in scientific research. Moreover, where researchers have lawful access to content, for example through subscriptions to publications or open access LIMITE (9) Union law already provides for certain exceptions and limitations covering uses for scientific research purposes which may apply to acts of text and data mining. However, those exceptions and limitations are optional and not fully adapted to the use of technologies in scientific research. Moreover, where researchers have lawful access to content, for example through subscriptions to publications or open access ECOMP 3.B. Row 21. COMMISSION PROPOSAL EP TEXT P8_TA-PROV(2018)0337 COUNCIL TEXT 9134/18 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 will suffer unless steps are taken to address the legal uncertainty for text and data mining. A8-0245/2018 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 will suffer unless steps are taken to address the legal uncertainty for text and data mining. COM(2016)593 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 will suffer unless steps are taken to address the legal uncertainty for text and data mining. POSSIBLE COMPROMISE SOLUTION 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 will suffer unless steps are taken to address the legal uncertainty for text and data mining. 24 10) This legal uncertainty should be addressed by providing for a mandatory exception for universities and other research organisations, as well as cultural heritage institutions to the exclusive right of reproduction and also to the right to prevent extraction from a database. In line with the existing European research policy, which encourages universities and research institutes to develop BM/ EN (10) This legal uncertainty should be addressed by providing for a mandatory exception to the exclusive 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 LIMITE (10) This legal uncertainty should be addressed by providing for a mandatory exception for research organisations 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 ECOMP 3.B. (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 5138/19 ANNEX Row COMMISSION PROPOSAL COM(2016)593 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. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 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. 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. In the event that the research is carried out in the framework of a public-private partnership, the undertaking participating in the public-private partnership should also have lawful access to the works and other subject matter. The reproductions and extractions made for text and COUNCIL TEXT 9134/18 mining techniques which do not involve the making of copies going beyond the scope of that exception. In line with the existing European research policy, which encourages universities and research institutes to develop collaborations with the private sector, Researchresearch organisations should also benefit from the exception when they engage into their research activities are carried out in the framework of public-private partnerships. While research organisations and cultural heritage institutions should remain the beneficiaries of the exception, they should be able to rely on their private partners for carrying out text and data mining, including by using their technological tools. POSSIBLE COMPROMISE SOLUTION collaborations with the private sector, research organisations should also benefit from the exception when their research activities are carried out in the framework of public-private partnerships. While research organisations and cultural heritage institutions should remain the beneficiaries of the exception, they should be able to rely on their private partners for carrying out text and data mining, including by using their technological tools. BM/ EN 25 [as to the last sentence of the EP text, see recitals 11(c), row 25] LIMITE [The second phrase of recital (10) of the COM proposal was moved ECOMP 3.B. Row 22. COMMISSION PROPOSAL COM(2016)593 (11) Research organisations across the Union encompass a wide variety of entities the primary goal of which is to conduct scientific research or to do so together with the provision of educational services. Due to the diversity of such entities, it is important to have a common understanding of the beneficiaries of the exception. 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 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 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. COUNCIL TEXT 9134/18 to new recital (8a) - see row 18] POSSIBLE COMPROMISE SOLUTION BM/ EN 26 (11) Research organisations across the Union encompass a wide variety of entities the primary goal of which is to conduct scientific research or to do so together with the provision of educational services. The term "scientific research" within the meaning of this Directive covers both the natural sciences and the human sciences. Due to the diversity of such entities, it is important to have a common understanding of research organisations. They should for example cover, besides universities or other higher education institutions and their libraries, also entities such as research institutes, hospitals carrying out research. Despite LIMITE (11) Research organisations (11) Research organisations across the Union encompass a across the Union encompass a wide variety of entities the wide variety of entities the primary goal of which is to primary goal of which is to conduct scientific research or to conduct scientific research or to do so together with the provision do so together with the provision of educational services. Due to of educational services. The term the diversity of such entities, it is "scientific research" within the important to have a common meaning of this Directive covers understanding of the beneficiaries both the natural sciences and of the exception. Despite different the human sciences. Due to the legal forms and structures, diversity of such entities, it is research organisations across important to have a common Member States generally have in understanding of the beneficiaries common that they act either on a of the exception.research not for profit basis or in the organisations. They should for context of a public-interest example cover entities such as mission recognised by the State. research institutes, hospitals Such a public-interest mission carrying out research, may, for example, be reflected universities, including through public funding or through university libraries, or other ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 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. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 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. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 27 different legal forms and structures, research organisations across the Member States generally have in common that they act either on a not for profit basis or in the context of a publicinterest 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. Conversely, organisations upon which commercial undertakings have a decisive influence allowing them to exercise control because of structural situations such as their quality of shareholders or members, which may result in preferential access to the results of the research, should not be considered research organisations for the purposes of this Directive. LIMITE higher education institutions. Despite different legal forms and structures, research organisations across the Member States generally have in common that they act either on a not for profit basis or in the context of a publicinterest 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 timeConversely, 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. ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 23. POSSIBLE COMPROMISE SOLUTION (11a) Cultural heritage institutions should be understood as covering publicly accessible libraries, museums and archives regardless of the type of works and other subject matter which they hold in their permanent collections, as well as film or audio heritage institutions. They should include, among others, national libraries and national archives. They should also include educational establishments and public sector broadcasting organisations, as far as their archives and publicly accessible libraries are concerned. 28 (11a) Cultural heritage institutions should be understood as covering publicly accessible libraries, museums and archives regardless of the type of works and other subject matter which they hold in their permanent collections, as well as film or audio heritage institutions. They should include, among others, national libraries and national archives. They should also include educational establishments and public sector broadcasting organisations, as far as their archives and publicly accessible libraries are concerned. BM/ EN (11b) Research organisations and cultural heritage institutions, including the persons attached thereto, should be covered by the text and data mining exception regarding content to which they have lawful access. Lawful access should be understood as covering LIMITE 24. ECOMP 3.B. (11b) Research organisations and cultural heritage institutions, including the persons attached thereto, should be covered by the text and data mining exception regarding content to which they 5138/19 ANNEX Row 25. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION access to content based on open access policy or through contractual arrangements between rightholders and research organisations or cultural heritage institutions, such as subscriptions, or through other lawful means. For instance, in cases of subscriptions taken by research organisations or cultural heritage institutions, the persons attached thereto covered by these subscriptions would be deemed to have lawful access. Lawful access also covers access to content that is freely available online. 29 have lawful access. Lawful access should be understood as covering access to content based on open access policy or through contractual arrangements between rightholders and research organisations or cultural heritage institutions, such as subscriptions, or through other lawful means. For instance, in cases of subscriptions taken by research organisations or cultural heritage institutions, the persons attached thereto covered by these subscriptions would be deemed to have lawful access. Lawful access also covers access to content that is freely available online. BM/ EN (11c) Research organisations and cultural heritage institutions may in certain cases, for example for subsequent verification of scientific research results, need to retain the copies made under the LIMITE (11c) Research organisations and cultural heritage institutions may in certain cases, for example for subsequent verification of scientific research results, need ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 30 exception for the purposes of carrying out text and data mining. In such cases, the copies should be stored in a secure environment. Member States may determine, at national level and after discussions with relevant stakeholders, further concrete modalities for retaining the copies, including the possibility to appoint trusted bodies for the purpose of storing such copies. In order not to unduly restrict the application of the exception, these modalities should be proportionate and limited to what is needed for retaining the copies in a safe manner and preventing unauthorised uses. Uses for the purpose of scientific research other than text and data mining, such as scientific peer review and joint research, should remain covered, where applicable, by the exception or limitation provided for in Article 5(3)(a) of Directive LIMITE to retain the copies made under the exception for the purposes of carrying out text and data mining. In such cases, the copies should be stored in a secure environment and not be retained for longer than necessary for the scientific research activities. Member States may determine, at national level and after discussions with relevant stakeholders, further concrete modalities for retaining the copies, including the possibility to appoint trusted bodies for the purpose of storing such copies. In order not to unduly restrict the application of the exception, these modalities should be proportionate and limited to what is needed for retaining the copies in a safe manner and preventing unauthorised uses. Uses for the purpose of scientific research other than text and data ECOMP 3.B. Row 26. COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 mining, such as scientific peer review and joint research, should remain covered, where applicable, by the exception or limitation provided for in Article 5(3)(a) of Directive 2001/29/EC. ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 2001/29/EC. BM/ EN 31 (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 when there is a risk that the security and integrity of their systems or databases could be jeopardised. Such measures could for example be used to ensure that only persons having lawful access to their data can access it, including through IP address validation or user authentication. These measures should however remain proportionate to the risks involved and should not prevent or make excessively difficult text and data mining carried out by LIMITE (12) In view of a potentially high (12) In view of a potentially high (12) In view of a potentially high number of access requests to and number of access requests to and number of access requests to and downloads of their works or other downloads of their works or other downloads of their works or other subject-matter, rightholders subject-matter, rightholders subject-matter, rightholders should be allowed to apply should be allowed to apply should be allowed to apply measures where there is risk that measures where there is risk that measures wherewhen there is a the security and integrity of the the security and integrity of the risk that the security and integrity system or databases where the system or databases where the of the systemtheir systems or works or other subject-matter are works or other subject-matter are databases where the works or hosted would be jeopardised. hosted would be jeopardised. other subject-matter are hosted Those measures should not Those measures should not wouldcould be jeopardised. exceed what is necessary to exceed what is necessary to ThoseSuch measures could for pursue the objective of ensuring pursue the objective of ensuring example be used to ensure that the security and integrity of the the security and integrity of the only persons having lawful system and should not undermine system and should not undermine access to their data can access the effective application of the the effective application of the it, including through IP address exception. exception. validation or user authentication. These measures should not exceed what is 5138/19 ANNEX Row 27. COMMISSION PROPOSAL COM(2016)593 (13) There is no need to provide for compensation for rightholders as regards uses under the text and data mining exception introduced by this Directive given that in view of the nature and scope of the exception the harm should be minimal. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (13) There is no need to provide for compensation for rightholders as regards uses under the text and data mining exception introduced by this Directive given that in view of the nature and scope of the exception the harm should be minimal. COUNCIL TEXT 9134/18 necessary to pursue the objective of ensuring the security and integrity of the systemhowever remain proportionate to the risks involved and should not undermine the effective application of the exceptionprevent or make excessively difficult text and data mining carried out by researchers. POSSIBLE COMPROMISE SOLUTION researchers. BM/ EN 32 (13) In view of the nature and scope of the exception, which is limited to entities carrying out scientific research any potential harm to rightholders created through this exception should be minimal. Therefore, Member States should not provide for compensation for rightholders as regards uses under the text and data mining exceptions introduced by this Directive. LIMITE (13) There is no need toIn view of the nature and scope of the exception, which is limited to entities carrying out scientific research any potential harm to rightholders created through this exception should be minimal. Therefore, Member States should not provide for compensation for rightholders as regards uses under the text and data mining exception introduced by this Directive given that in view of the nature and scope of the exception the harm should be ECOMP 3.B. Row 28. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 9134/18 COUNCIL TEXT minimal. POSSIBLE COMPROMISE SOLUTION BM/ EN 33 (13a) In addition to their significance in the context of scientific research, text and data mining techniques are widely used both by private and public entities to analyse large amounts of data in different areas of life and for various purposes, including for government services, complex business decisions and the development of new applications or technologies. Rightholders should remain able to license the uses of their works and other subject-matter falling outside the scope of the mandatory exception provided for in this Directive and the existing exceptions and limitations provided for in Directive 2001/29/EC. At the same time, consideration should be given to the fact that users of text and data LIMITE (13a) In addition to their significance in the context of scientific research, text and data mining techniques are widely used both by private and public entities to analyse large amounts of data in different areas of life and for various purposes, including for government services, complex business decisions and the development of new applications or technologies. Rightholders should remain able to license the uses of their works and other subject-matter falling outside the scope of the mandatory exception provided for in this Directive and the existing exceptions and limitations provided for in Directive 2001/29/EC. At the same time, consideration should be given to the fact that users of text and data mining techniques ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION mining techniques may be faced with legal uncertainty as to whether temporaryreproductions and extractions which are a part of the process of made for the purposes of text and data mining may be carried out on publicly available and lawfully accessed works and other subject-matter, in particular when the reproductions or extractions made for the purposes of the technical process may not fulfil all the conditions of the existing exception for temporary acts of reproduction in Article 5(1) of Directive 2001/29/EC. BM/ EN 34 In order to provide for more legal certainty in such cases and to encourage innovation also in the private sector, this Directive should [enable the Member States to] provide under certain conditions for an exception or LIMITE may be faced with legal uncertainty as to whether temporary reproductions and extractions which are a part of the process of text and data mining may be carried out on publicly available and lawfully accessed works and other subject-matter, in particular when the reproductions or extractions made for the purposes of the technical process may not fulfil all the conditions of the existing exception for temporary acts of reproduction in Article 5(1) of Directive 2001/29/EC. In order to provide for more legal certainty in such cases, this Directive should enable the Member States to provide under certain conditions for an exception or limitation for temporary reproductions and extractions of works and other subject-matter, insofar as these form a part of the text and data ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 35 limitation for temporaryreproductions and extractions of works and other subject-matter, insofar as these form a part of the for the purposes of text and data mining process and allow the copies made are not to be kept beyond that process as long as necessary for the text and data mining purposes. This optional exception or limitation should only apply when the work or other subject-matter is accessed lawfully by the beneficiary, including when it has been made available to the public online, and insofar as the rightholders have not reserved the rights to make reproductions and extractions for text and data mining for example by agreement, unilateral declaration, including through the use of machine readable metadata or by the use of technical means. in an LIMITE mining process and the copies made are not kept beyond that process. This optional exception or limitation should only apply when the work or other subject-matter is accessed lawfully by the beneficiary, including when it has been made available to the public online, and insofar as the rightholders have not reserved the right to make reproductions and extractions for text and data mining, for example by agreement, unilateral declaration, including through the use of machine readable metadata or by the use of technical means. Rightholders should be able to apply measures to ensure that their reservations in this regard are respected. This optional exception or limitation should leave intact the mandatory exception for text and data mining for research purposes ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 36 appropriate manner. In the case of content that has been made publicly available online, it should only be considered appropriate to reserve the rights by the use of machine readable metadata. In other cases, it may be appropriate to reserve the rights by other means, such as this may be expressed by contractual agreements or unilateral declaration, as appropriate. Rightholders should be able to apply measures to ensure that their reservations in this regard are respected. This [optional] exception or limitation should leave intact the mandatory exception for text and data mining for research purposes laid down in this Directive, as well as the existing exception for temporary acts of reproduction in Article 5(1) of Directive LIMITE laid down in this Directive. ECOMP 3.B. Row 29. 30. COMMISSION PROPOSAL COM(2016)593 (14) Article 5(3)(a) of Directive 2001/29/EC allows Member States to introduce an exception or limitation to the rights of reproduction, communication to the public and making available to the public for the sole purpose of, among others, illustration for teaching. In addition, Articles 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (13a) To encourage innovation also in the private sector, Member States should be able to provide for an exception going further than the mandatory exception, provided that the use of works and other subject matter referred to therein has not been expressly reserved by their rightholders including by machine readable means. (14) Article 5(3)(a) of Directive 2001/29/EC allows Member States to introduce an exception or limitation to the rights of reproduction, communication to the public and making available to the public for the sole purpose of, among others, illustration for teaching. In addition, Articles COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION 2001/29/EC. [wording to be adapted once decided whether Article 3a is optional or mandatory] [deleted] BM/ EN 37 (14) Article 5(3)(a) of Directive 2001/29/EC allows Member States to introduce an exception or limitation to the rights of reproduction, communication to the public and making available to the public of works and other subject matter in such a way that members of the public may LIMITE (14) Article 5(3)(a) of Directive 2001/29/EC allows Member States to introduce an exception or limitation to the rights of reproduction, communication to the public and making available to the public of works and other subject matter in such a way that members of the public may ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 6(2)(b) and 9(b) of Directive 96/9/EC permit the use of a database and the extraction or reutilization of a substantial part of its contents for the purpose of illustration for teaching. The scope of those exceptions or limitations as they apply to digital uses is unclear. In addition, there is a lack of clarity as to whether those exceptions or limitations would apply where teaching is provided online and thereby at a distance. Moreover, the existing framework does not provide for a cross-border effect. This situation may hamper the development of digitally-supported teaching activities and distance learning. Therefore, the introduction of a new mandatory exception or limitation is necessary to ensure that educational establishments benefit from full legal certainty when using works or other subject-matter in digital teaching activities, including online and 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 6(2)(b) and 9(b) of Directive 96/9/EC permit the use of a database and the extraction or reutilization of a substantial part of its contents for the purpose of illustration for teaching. The scope of those exceptions or limitations as they apply to digital uses is unclear. In addition, there is a lack of clarity as to whether those exceptions or limitations would apply where teaching is provided online and thereby at a distance. Moreover, the existing framework does not provide for a cross-border effect. This situation may hamper the development of digitally-supported teaching activities and distance learning. Therefore, the introduction of a new mandatory exception or limitation is necessary to ensure that educational establishments benefit from full legal certainty when using works or other subject-matter in digital teaching activities, including online and COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 38 access them from a place and a time individually chosen by them ("making available to the public"), for the sole purpose of illustration for teaching. In addition, Articles 6(2)(b) and 9(b) of Directive 96/9/EC permit the use of a database and the extraction of a substantial part of its contents for the purpose of illustration for teaching. The scope of those exceptions or limitations as they apply to digital uses is unclear. In addition, there is a lack of clarity as to whether those exceptions or limitations would apply where teaching is provided online and at a distance. Moreover, the existing legal framework does not provide for a cross-border effect. This situation may hamper the development of digitally-supported teaching activities and distance learning. Therefore, the introduction of a new mandatory exception or limitation is necessary to ensure LIMITE access them from a place and a time individually chosen by them (‘making available to the public’), for the sole purpose of, among others, illustration for teaching. In addition, Articles 6(2)(b) and 9(b) of Directive 96/9/EC permit the use of a database and the extraction or reutilization of a substantial part of its contents for the purpose of illustration for teaching. The scope of those exceptions or limitations as they apply to digital uses is unclear. In addition, there is a lack of clarity as to whether those exceptions or limitations would apply where teaching is provided online and thereby at a distance. Moreover, the existing legal framework does not provide for a cross-border effect. This situation may hamper the development of digitallysupported teaching activities and distance learning. Therefore, the introduction of a new mandatory ECOMP 3.B. Row 31. COMMISSION PROPOSAL COM(2016)593 across borders. (15) While distance learning and cross-border education programmes are mostly developed at higher education level, digital tools and resources are increasingly used at all education levels, in particular to improve and enrich the learning experience. The exception or limitation provided for in this Directive should therefore benefit all educational establishments in primary, secondary, vocational and higher education to the extent they pursue their educational activity for a non-commercial purpose. The organisational structure and the means of 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION that educational establishments benefit from full legal certainty when using works or other subject-matter in digital teaching activities, including online and across borders. A8-0245/2018 across borders. exception or limitation is necessary to ensure that educational establishments benefit from full legal certainty when using works or other subject-matter in digital teaching activities, including online and across borders. 39 (15) While distance learning and cross-border education programmes are mostly developed at higher education level, digital tools and resources are increasingly used at all education levels, in particular to improve and enrich the learning experience. The exception or limitation provided for in this Directive should therefore benefit all educational establishments recognised by a Member State, including in primary, secondary, vocational and higher education. It should apply only to the extent that the uses are justified by the non-commercial purpose of the BM/ EN (15) While distance learning and cross-border education programmes are mostly developed at higher education level, digital tools and resources are increasingly used at all education levels, in particular to improve and enrich the learning experience. The exception or limitation provided for in this Directive should therefore benefit all educational establishments inrecognised by a Member State, including primary, secondary, vocational and higher education. It should apply only to the extent they pursue their educational activity for a that the LIMITE (15) While distance learning and cross-border education programmes are mostly developed at higher education level, digital tools and resources are increasingly used at all education levels, in particular to improve and enrich the learning experience. The exception or limitation provided for in this Directive should therefore benefit all educational establishments in primary, secondary, vocational and higher education to the extent they pursue their educational activity for a non-commercial purpose. The organisational structure and the means of ECOMP 3.B. Row 32. COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION funding of an educational establishment are not the decisive factors to determine the noncommercial nature of the activity. particular teaching activity. The organisational structure and the means of funding of an educational establishment should not be the decisive factors to determine the non-commercial nature of the activity. BM/ EN 40 uses are justified by the noncommercial purpose. of the particular teaching activity. The organisational structure and the means of funding of an educational establishment areshould not be the decisive factors to determine the noncommercial nature of the activity. funding of an educational establishment are not the decisive factors to determine the noncommercial nature of the activity. Where cultural heritage institutions pursue an educational objective and are involved in teaching activities, it should be possible for Member States to consider those institutions as an educational establishment under this exception in so far as their teaching activities are concerned. GREEN LIMITE (16) The exception or limitation for the sole purpose of illustration for teaching provided for in this Directive should cover be understood as covering digital uses of works and other subject-matter such as the use of parts or extracts of works to support, enrich or (16) The exception or limitation (16) The exception or limitation should cover digital uses of works for the sole purpose of and other subject-matter such as illustration for teaching the use of parts or extracts of provided for in this Directive works to support, enrich or should cover be understood as complement the teaching, covering digital uses of works including the related learning and other subject-matter such as activities. The exception or the use of parts or extracts of works to support, enrich or limitation of use should be complement the teaching, granted as long as the work or including the related learning other subject-matter used ECOMP 3.B. (16) The exception or limitation should cover digital uses of works and other subject-matter such as the use of parts or extracts of works to support, enrich or complement the teaching, including the related learning activities. The use of the works or other subject-matter under the exception or limitation should be only in the context of teaching 5138/19 ANNEX Row COMMISSION PROPOSAL COM(2016)593 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. 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. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 indicates the source, including the authors’ name, unless that turns out to be impossible for reasons of practicability. The use of the works or other subjectmatter 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. The exception or limitation should cover both uses through digital means in the classroom where the teaching activity is physically provided, including where it takes place outside the premises of the educational establishment, for example in libraries or cultural heritage institutions, as long as the use is made under the responsibility of the educational establishment, and online uses through the educational COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION complement the teaching, including the related learning activities. activities. […]* In most cases, the concept of illustration would therefore imply uses of parts or extracts of works only, which should not substitute the purchase of materials primarily intended for educational markets. When implementing the exception or limitation, Member States should remain free to specify, for the different categories of works or other subject-matter and in a balanced manner, the proportion of a work or other subject-matter that may be used for the sole purpose of illustration for teaching. The Uses allowed under the exception or limitation should be understood to cover the specific accessibility needs of persons LIMITE BM/ EN 41 […]* In most cases, the concept of illustration would therefore imply uses of parts or extracts of works only, which should not substitute the purchase of materials primarily intended for educational markets. When implementing the exception or limitation, Member States should remain free to specify, for the different categories of works or other subject-matter and in a balanced manner, the proportion of a work or other subject-matter that may be used for the sole purpose of illustration for teaching. The Uses allowed under the exception or limitation should be understood to cover the specific accessibility needs of persons with a disability in the context of illustration for teaching. ECOMP 3.B. Row 33. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 establishment's secure electronic network environment, 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. COUNCIL TEXT 9134/18 *[The second and third phrase of recital (16) of the COM proposal were moved to new recital (16a) Council's text - see row 33] POSSIBLE COMPROMISE SOLUTION with a disability in the context of illustration for teaching. *[The second and third phrase of recital (16) of the COM proposal were moved to new recital (16a) Council's text - see row 33] [provisionally agreed at trilogue 26/11/2018/03/12/2018] GREEN BM/ EN 42 (16a) The use of the works or other subject-matter under the exception or limitation should be only in the context of teaching and learning activities carried out under the responsibility of educational establishments, including during examinations or teaching activities taking place outside the premises of educational establishments, for example in a museum, library or another cultural heritage institution, and be limited to LIMITE (16a) The use of the works or other subject-matter under the exception or limitation should be only in the context of teaching and learning activities carried out under the responsibility of educational establishments, including during examinations or teaching activities taking place outside the premises of educational establishments, for example in a museum, library or another cultural heritage institution, and be limited to what is necessary for the purpose of such activities. The exception ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 43 what is necessary for the purpose of such activities. The exception or limitation should cover both uses through digital means of works and other subject matter made in the classroom and online uses or in other venues through digital means, for example electronic whiteboards or digital devices which may be connected to the Internet, as well as uses made at a distance through the educational establishment's secure electronic networks environments, such as online courses or access to teaching material complementing a given course. Secure electronic networks environments should be understood as digital teaching and learning environments the access to which should be protected is limited to the educational establishment's teaching staff and to the pupils or students enrolled in a study LIMITE or limitation should cover both uses through digital means of works and other subject matter made in the classroom and online uses or in other venues through digital means, for example electronic whiteboards or digital devices which may be connected to the Internet, as well as uses made at a distance through the educational establishment's secure electronic networks, such as online courses or access to teaching material complementing a given course. Secure electronic networks should be understood as digital teaching and learning environments the access to which should be protected is limited to the educational establishment's teaching staff and to the pupils or students enrolled in a study programme, notably through appropriate authentication procedures, including password based ECOMP 3.B. Row 34. 35. COMMISSION PROPOSAL COM(2016)593 (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 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (16a) A secure electronic environment should be understood as a digital teaching and learning environment, access to which is limited through an appropriate authentication procedure to the educational establishment’s teaching staff and to the pupils or students enrolled in a study programme. (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 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION programme, notably through authentication. appropriate authentication [Phrases of new recital (16a) procedures, including password were taken from recital (16) based authentication. (second and third phrase) of the COM proposal – see row 32] [provisionally agreed at Trilogue 26/11/2018] [deleted] GREEN BM/ EN 44 (17) Different arrangements, based on the implementation of the exception provided for in Directive 2001/29/EC or on licensing agreements covering LIMITE (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 ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 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 crossborder 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 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 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 crossborder 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. Such licences can take the form of COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 45 further uses, are in place in a number of Member States in order to facilitate educational uses of works and other subjectmatter. 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. Member States should for example remain free to require that the use of works and other subject matter should respect moral rights of authors and performers. This should allow Member States to build on the LIMITE order to facilitate educational uses of works and other subjectmatter. 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. Member States should for example remain free to require that the use of works and other subject matter should respect moral rights of authors and performers. This should allow Member States to build on the existing arrangements concluded at national level. In particular, ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION 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. Member States should ensure that where licenses cover only partially the uses allowed under the exception, all the other uses remain subject to the exception. Member States could for example use this mechanism to give precedence to licences for materials which are primarily intended for the educational market or for sheet music. BM/ EN 46 In order to avoid that the possibility to subject the application of the exception to the availability of licences results in legal uncertainty or administrative burden for LIMITE 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. ThisMember States could notably use this mechanism would, for example, allow givingto give precedence to licences for materials which are primarily intended for the educational market or for sheet music. 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 rightholders make the licensing schemes allowing digital uses of works or other subject-matter for the purpose of illustration for teaching are easily available and that educational ECOMP 3.B. allowed under the exception. This collective licensing agreements, mechanism would, for example, extended collective licensing allow giving precedence to agreements and licences that are licences for materials which are negotiated collectively such as primarily intended for the “blanket licences”, in order to educational market. In order to avoid educational establishments avoid that such mechanism results having to negotiate individually in legal uncertainty or with rightholders. Such licenses administrative burden for should be affordable and cover at educational establishments, least the same uses as those Member States adopting this allowed under the exception. This approach should take concrete mechanism would, for example, measures to ensure that licensing allow giving precedence to schemes allowing digital uses of licences for materials which are works or other subject-matter for primarily intended for the the purpose of illustration for educational market, or for teaching are easily available and teaching in educational that educational establishments establishments or sheet music. In are aware of the existence of such order to avoid that such licensing schemes. mechanism results in legal uncertainty or administrative burden for educational establishments, Member States adopting this approach should take concrete measures to ensure that such licensing schemes allowing digital uses of works or 5138/19 ANNEX Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 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. Member States should be able to provide for systems to ensure that there is fair compensation for rightholders for uses under those exceptions or limitations. Member States should be encouraged to use systems that do not create an administrative burden, such as systems that provide for one-off payments. [See Council’s recital (17a) - row 36] COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION educational establishments, Member States adopting this approach should take concrete measures to ensure that right holders make the 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. Such licensing schemes measures may include the development of licensing schemes tailored to should meet the needs of educational establishments. and the development of Information tools aiming at ensuring the visibility of the existing licensing schemes could also be developed. BM/ EN 47 Such schemes could, for example, be based on collective licensing or on extended collective licensing in order to LIMITE establishments are aware of the existence of such licensing schemes. Such measures may include the development of licensing schemes tailored to the needs of educational establishments and the development of information tools aimed at ensuring the visibility of the existing licensing schemes. ECOMP 3.B. Row 36. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION avoid educational establishments having to negotiate individually with rightholders. In order to guarantee legal certainty, Member States should specify under which conditions an educational establishment may use protected works or other subject-matter under that exception and, conversely, when it should act under a licensing scheme. [provisionally agreed at Trilogue 26/11/2018; ] GREEN BM/ EN 48 (17a)Member States should remain free to provide that rightholders receive fair compensation for the digital uses of their works or other subject- LIMITE (17a) Member States should remain free to provide that rightholders receive fair compensation for the digital uses of their works or other subject-matter under the ECOMP 3.B. Row 37. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (17 a) In order to guarantee legal certainty when a Member State decides to subject the application of the exception to the availability of adequate licences, it is necessary to specify under which conditions an COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION matter under the exception or limitation for illustration for teaching provided for in this Directive. For the purposes of determining the possible level of fair compensation, due account should be taken, inter alia, of Member States' educational objectives and of the harm to rightholders. Member States deciding to provide for fair compensation should encourage the use of systems, which do not create administrative burden for educational establishments. [provisionally agreed at Trilogue 26/11/2018] BM/ EN 49 [moved under recital 17 (row 35)] LIMITE exception or limitation for illustration for teaching provided for in this Directive. For the purposes of determining the possible level of fair compensation, due account should be taken, inter alia, of Member States' educational objectives and of the harm to rightholders. ECOMP 3.B. Row 38. COMMISSION PROPOSAL COM(2016)593 (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 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 educational establishment may use protected works or other subject-matter under that exception and, conversely, when it should act under a licensing scheme. (18) An act of preservation of a work or other subject-matter in the collection of a cultural heritage institution may require a reproduction of a work or other subject-matter in the collection of a cultural heritage institution and consequently require 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 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION [the order of first and second sentence was inverted] BM/ EN 50 (18) Cultural heritage institutions are engaged in the preservation of their collections for future generations. An act of preservation of a work or other subject-matter in the collection of a cultural heritage institution may require a reproduction of a work or other subject-matter in the collection of a cultural heritage institution and consequently require the authorisation of the relevant rightholders. Cultural heritage institutions are engaged in the preservation of their collections for future generations. Digital LIMITE (18) An act of preservation may require a reproduction of a work or other subject-matter in the collection of a cultural heritage institution may require a reproduction 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 ECOMP 3.B. Row 39. COMMISSION PROPOSAL COM(2016)593 those acts of preservation. EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 mandatory exception to the right of reproduction in order to allow those acts of preservation by such institutions. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION those acts of preservation. 51 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 by such institutions. BM/ EN (19) Different approaches in the Member States for acts of preservation by cultural heritage institutions hamper cross-border cooperation and the sharing of means of preservation by cultural heritagesuch institutions in the internal market, leading to an inefficient use of resources. LIMITE (19) Different approaches in the Member States for acts of reproduction for preservation by cultural heritage institutions hamper cross-border cooperation, and the sharing of means of preservation by cultural heritage institutions in the internal market, and the establishment of cross-border preservation networks in the internal market by such institutions leading to an inefficient use of resources. This can have a negative impact on the preservation of cultural ECOMP 3.B. (19) Different approaches in the (19) Different approaches in the Member States for acts of Member States for acts of preservation by cultural heritage reproduction for preservation by institutions hamper cross-border cultural heritage institutions cooperation and the sharing of hamper cross-border cooperation, means of preservation by cultural and the sharing of means of heritage institutions in the internal preservation by cultural heritage market, leading to an inefficient institutions in the internal market, use of resources. and the establishment of crossborder preservation networks in the internal market organisations that are engaged in preservation, leading to an inefficient use of resources. This can have a negative impact on 5138/19 ANNEX Row 40. COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 the preservation of cultural heritage. ECOMP 3.B. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION heritage. BM/ EN 52 (20) Member States should therefore be required to provide for an exception to permit cultural heritage institutions to reproduce works and other subject-matter permanently in their collections for preservation purposes, for example to address technological obsolescence or the degradation of original supports or to insure works and other subject-matter. Such an exception should allow for the making of copies by the appropriate preservation tool, means or technology, in any format or medium, in the required number and at any point in the life of a work or other subject-matter and to the extent required in order to produce a copy for preservation purposes only. Acts of reproduction undertaken by cultural heritage institutions for purposes other LIMITE (20) Member States should (20) Member States should (20) Member States should therefore be required to provide therefore be required to provide therefore be required to provide for an exception to permit cultural for an exception to permit cultural for an exception to permit heritage institutions to reproduce heritage institutions to reproduce cultural heritage institutions to works and other subject-matter works and other subject-matter reproduce works and other permanently in their collections permanently in their collections subject-matter permanently in for preservation purposes, for for preservation purposes, for their collections for preservation example to address technological example to address technological purposes, for example to address obsolescence or the degradation obsolescence or the degradation technological obsolescence or the of original supports. Such an of original supports or to insure degradation of original supports. exception should allow for the works. Such an exception should Such an exception should allow making of copies by the allow for the making of copies by for the making of copies by the appropriate preservation tool, the appropriate preservation tool, appropriate preservation tool, means or technology, in the means or technology, in any means or technology, in the required number and at any point format or medium, in the required number and at any point in the life of a work or other required number, at any point in in the life of a work or other subject-matter to the extent the life of a work or other subject- subject-matter to the extent required in order to produce a matter and to the extent required required in order to produce a copy for preservation purposes in order to produce a copy for copy for preservation purposes only. preservation purposes only. The only. Acts of reproduction archives of research undertaken by cultural heritage organisations or public-service institutions for purposes other broadcasting organisations than the preservation of works should be considered cultural and other subject-matter in 5138/19 ANNEX Row 41. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 heritage institutions and therefore beneficiaries of this exception. Member States should, for the purpose of this exception, be able to maintain provisions to treat publicly accessible galleries as museums. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION their permanent collections should remain subject to the authorisation of rightholders, unless permitted by other exceptions or limitations provided for by Union law. 53 than the preservation of works and other subject-matter in their permanent collections should remain subject to the authorisation of rightholders, unless permitted by other exceptions or limitations provided for by Union law. BM/ EN (20a) Cultural heritage institutions do not necessarily have the technical means or expertise to undertake the acts required to preserve their collections themselves, particularly in the digital environment, and may therefore have recourse to the assistance of other cultural institutions and other third parties for that purpose. Under this exception, cultural heritage institutions should therefore be allowed to rely on third parties acting on their behalf and under their responsibility, including those that are based LIMITE (20a) Cultural heritage institutions do not necessarily have the technical means or expertise to undertake the acts required to preserve their collections themselves, particularly in the digital environment, and may therefore have recourse to the assistance of other cultural institutions and other third parties for that purpose. Under this exception, cultural heritage institutions should therefore be allowed to rely on third parties acting on their behalf and under their responsibility, including those that are based ECOMP 3.B. Row COMMISSION PROPOSAL EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 42. (21) For the purposes of this (21) For the purposes of this Directive, works and other Directive, works and other subject-matter should be subject-matter should be considered to be permanently in considered to be permanently in the collection of a cultural the collection of a cultural heritage institution when copies heritage institution when copies are owned or permanently held by of such works or other subject the cultural heritage institution, matter are owned or permanently for example as a result of a held by the cultural heritage transfer of ownership or licence institution, those organisations, agreements. for example as a result of a transfer of ownership or, licence agreements, a legal deposit or a long-term loan . Works or other subject matter that cultural heritage institutions access temporarily via a third-party server are not considered as being permanently in their collections. COM(2016)593 43. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION in other Member States, for the making of copies. 9134/18 in other Member States, for the making of copies. (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 such works or other subjectmatter are owned or permanently held by such institutions, for example as a result of a transfer of ownership or licence agreements, legal deposit obligations or permanent custody arrangements. LIMITE BM/ EN 54 [deleted and if need be to be replaced by text related to paragraph 5bis of Article 13 [tentatively agreed at TM, confirmed at trilogue 13/12/2018] (21) For the purposes of this Directive, works and other subject-matter should be considered to be permanently in the collection of a cultural heritage institution when copies are owned or permanently held by the cultural heritage institutionsuch institutions, for example as a result of a transfer of ownership or licence agreements or permanent custody arrangements. ECOMP 3.B. (21a) Technological developments have given rise to information society services 5138/19 ANNEX Row 44. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION depending on final agreement] 55 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 preexisting protected works or other subject-matter that such users might have altered, combined or otherwise transformed. BM/ EN [deleted and if need be to be replaced by text related to paragraph 5bis of Article 13 depending on final agreement] LIMITE (21b) Despite some overlap with existing exceptions or limitations, such as the ones for quotation and parody, not all content that is uploaded or made available by a user that reasonably includes extracts of protected works or other subjectmatter is covered by Article 5 of Directive 2001/29/EC. A situation of this type creates legal uncertainty for both users and rightholders. It is therefore necessary to provide a new specific exception to permit the ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 legitimate uses of extracts of preexisting protected works or other subject-matter in content that is uploaded or made available by users. Where content generated or made available by a user involves the short and proportionate use of a quotation or of an extract of a protected work or other subject-matter for a legitimate purpose, such use should be protected by the exception provided for in this Directive. This exception should only be applied in certain special cases which do not conflict with normal exploitation of the work or other subject-matter concerned and do not unreasonably prejudice the legitimate interests of the rightholder. For the purpose of assessing such prejudice, it is essential that the degree of originality of the content concerned, the length/extent of the quotation or extract used, the ECOMP 3.B. 56 POSSIBLE COMPROMISE SOLUTION BM/ EN COUNCIL TEXT 9134/18 LIMITE Row 45. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 professional nature of the content concerned or the degree of economic harm be examined, where relevant, while not precluding the legitimate enjoyment of the exception. This exception should be without prejudice to the moral rights of the authors of the work or other subject-matter. (21c) Information society service providers that fall within the scope of Article 13 of this Directive should not be able to invoke for their benefit the exception for the use of extracts from pre-existing works provided for in this Directive, for the use of quotations or extracts from protected works or other subjectmatter in content that is uploaded or made available by users on those information society services, to reduce the scope of their obligations under ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 57 COUNCIL TEXT 9134/18 BM/ EN [deleted and if need be to be replaced by text related to paragraph 5bis of Article 13 depending on final agreement] LIMITE Row 45a. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 Article 13 of this Directive. ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 58 COUNCIL TEXT 9134/18 GREEN BM/ EN The expiry of the term of protection of a work entails the entry of that work in the public domain and the expiry of the rights that Union copyright law provides to that work. In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture (or access to cultural heritage). In the digital environment, the protection of these reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works. In addition, differences between the national copyright laws governing the protection of these reproductions give rise to legal uncertainty and affect the crossborder dissemination of works of LIMITE Row 46. COMMISSION PROPOSAL COM(2016)593 (22) Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of outof-commerce works or other subject-matter. However, the particular characteristics of the collections of out-of-commerce works mean that obtaining the prior consent of the individual rightholders may be very difficult. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (22) Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of out-of-commerce works or other subject-matter. However, the particular characteristics of the collections of out-of-commerce works mean that obtaining the prior consent of the individual rightholders may be very difficult. This can be due, COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION visual arts in the public domain. Therefore, it should be clarified that certain reproductions of works of visual arts in the public domain should not be protected by copyright or related rights. This should not prevent cultural heritage institutions from selling reproductions, such as postcards. [provisionaly agreed at trilogue of 13/12/2016] BM/ EN 59 (22) Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of works or other subject-matter that are considered out of commerce for the purposes of this Directive. However, the particular characteristics of the collections of out-of-commerce works, together with the amount of LIMITE (22) Cultural heritage institutions should benefit from a clear framework for the digitisation and dissemination, including across borders, of outof-commerce works or other subject- matter. that are considered out of commerce for the purposes of this Directive. However, the particular characteristics of the collections of out-of-commerce works, ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 This can be due, for example, to the age of the works or other subject-matter, their limited commercial value or the fact that they were never intended for commercial use. It is therefore necessary to provide for measures to facilitate the licensing of rights in out-of-commerce works that are in the collections of cultural heritage institutions and thereby to allow the conclusion of agreements with cross-border effect in the internal market. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION LIMITE BM/ EN 60 [tentatively agreed at TM; confirmed at trilogue of for example, to the age of the works and other subject-matter together with the amount of works or other subject-matter, involved in mass digitisation works involved in mass their limited commercial value or digitisation projects, mean that projects, mean that obtaining the the fact that they were never obtaining the prior consent of the prior consent of the individual intended for commercial use or individual rightholders may be rightholders may be very have never been in commerce. It very difficult. This can be due, difficult. This can be due, for is therefore necessary to provide for example, to the age of the example, to the age of the works for measures to facilitate the works or other subject-matter, or other subject-matter, their licensing of rights in use of outtheir limited commercial value or limited commercial value or the of-commerce works that are in the the fact that they were never fact that they were never intended collections of cultural heritage intended for commercial use. It is for commercial use or that they institutions and thereby to allow therefore necessary to provide for have never been exploited the conclusion of agreements with measures to facilitate the commercially. It is therefore cross-border effect in the internal collective licensing of rights in necessary to provide for measures market. out-of-commerce works that are to facilitate certain uses of the permanently in the collections of collective licensing of rights in cultural heritage institutions and out-of-commerce works and thereby to allow the conclusion of other subject-matter that are agreements with cross-border permanently in the collections of effect in the internal market. cultural heritage institutions. , and thereby to allow the conclusion of agreements with cross-border effect in the internal market. ECOMP 3.B. Row 47. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (22a) Several Member States have already adopted extended collective licencing regimes, legal mandates or legal presumptions facilitating the licencing of out-of-commerce works. However considering the variety of works and other subject-matter in the collections of cultural heritage institutions and the variance between collective management practices across Member States and sectors of cultural production, such measures may not provide a solution in all cases, for example, because there is no practice of collective management for a certain type of work or other subject matter. In such particular instances, it is therefore necessary to allow cultural heritage institutions to make out-of-commerce works held in their permanent ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 61 COUNCIL TEXT 9134/18 13/12/2018] (22a) Legal mechanisms should therefore exist in all Member States allowing for licences issued by relevant and sufficiently representative collective management organisations to cultural heritage institutions, for certain uses of out-of-commerce works and other subject matter, to also apply to the rights of rightholders that have not mandated a representative collective management organisation in that regard. It should be legally possible for those licences to cover all territories of the Union. BM/ EN (22b) An adapted legal framework applicable to collective licensing may not provide a solution for all the cases where cultural heritage institutions encounter LIMITE Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 collection available online under an exception to copyright and related rights. While it is essential to harmonise the scope of the new mandatory exception in order to allow cross-border uses of out-of-commerce works, Member States should nevertheless be allowed to use or continue to use extended collective licencing arrangements concluded with cultural heritage institutions at national level for categories of works that are permanently in the collections of cultural heritage institutions The lack of agreement on the conditions of the licence should not be interpreted as a lack of availability of licensing-based solutions. Any uses under this exception should be subject to the same opt-out and publicity requirements as uses authorised by a licensing mechanism. In order to ensure that the ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 62 COUNCIL TEXT 9134/18 BM/ EN difficulties in obtaining all the necessary authorisations of right holders for the use of outof-commerce works and other subject-matter, for example, because there is no practice of collective management for a certain type of works or other subject-matter or because the relevant collective management organisation is not broadly representative for the category of the right holders and of the rights concerned. In such particular instances, it should be possible for cultural heritage institutions to make out-ofcommerce works and other subject-matter that are permanently in their collection available online in all territories of the Union under a harmonised exception or limitation to copyright and related rights. It is important that uses under that exception or limitation only take place LIMITE Row 48. COMMISSION PROPOSAL COM(2016)593 (23) Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of mechanism allowing for licences 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 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 exception only applies when certain conditions are fulfilled and to provide legal certainty, Member States should determine, in consultation with rightholders, collective management organisations and cultural heritage organisations, and at appropriate intervals of time, for which sectors and which types of works appropriate licence-based solutions are not available, in which case the exception should apply. (23) Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of mechanism allowing for licences for out-of-commerce works to extend to the rights of rightholders that are not represented by the relevant collective management organisation, in accordance to with their legal traditions, COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION when certain conditions, notably as regards the availability of licensing solutions, are fulfilled. The lack of agreement on the conditions of the licence should not be interpreted as a lack of availability of licensing-based solutions. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 63 (23) Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of licensing mechanism, such as extended collective licensing or presumptions of representation, that they put in place for the use of out-ofcommerce works and other subject matter by cultural heritage institutions, in LIMITE (23) Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of mechanism, such as extended collective licensing or presumption of representation, allowing for licences for out-ofcommerce works to extend to the rights of rightholders that arehave not represented by themandated a representative collective ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 circumstances. Such mechanisms can include extended collective licensing and presumptions of representation. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 practices or circumstances. Such mechanisms can include extended collective licensing and presumptions of representation. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION accordance with their legal traditions, practices or circumstances. Member States should also have flexibility in determining the requirements for collective management organisations to be sufficiently representative, as long as this is based on a significant number of rightholders in the relevant type of works or other subject-matter who have given a mandate allowing the licensing of the relevant type of use. Member States should be free to establish specific rules applicable to cases where more than one collective management organisation is representative for the relevant works or other subject matter, requiring for example joint licences or an agreement between the relevant organisations. BM/ EN 64 [tentatively agreed at TM, confirmed at trilogue 13/12/2018] LIMITE management organisation, in accordance towith their legal traditions, practices or circumstances. Such mechanisms can include extended collective licensing and presumptions of representationMember States should also have flexibility in determining the requirements for collective management organisations to be sufficiently representative, as long as this is based on a significant number of rightholders in the relevant type of works or other subjectmatter who have given a mandate allowing the licensing of the relevant type of use. Member States should be free to establish specific rules applicable to cases where more than one collective management organisation is representative for the relevant works or other subject matter, requiring for example joint licences or an agreement between the relevant ECOMP 3.B. Row 49. COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 organisations. POSSIBLE COMPROMISE SOLUTION (24) For the purpose of those licensing mechanisms, a rigorous and well-functioning collective management system is important. That system includes in particular rules of good governance, transparency and reporting, as well as the regular, diligent and accurate distribution and payment of amounts due to individual rightholders, as provided for by Directive 2014/26/EU. BM/ EN 65 (24a) Additional appropriate safeguards should be available for all rightholders, who should be given the opportunity to exclude the application of thesuch licensing mechanisms and the exception or limitation introduced by this Directive for the use of out-of-commerce works in relation to all their works or other subject-matter or in relation to all licences or all LIMITE (24) For the purpose of those licensing mechanisms, a rigorous and well-functioning collective management system is important. That system includes in particular rules of good governance, transparency and reporting, as well as the regular, diligent and accurate distribution and payment of amounts due to individual rightholders, as provided for by Directive 2014/26/EU. Additional appropriate safeguards should be available for all rightholders, who should be given the opportunity to exclude the application of such mechanisms in relation to all their works or other subjectmatter or to all licences, or in relation to particular works or other subject-matter or to particular licences, at any time before or under the duration of the licence. Conditions attached ECOMP 3.B. (24) For the purpose of those (24) For the purpose of those licensing mechanisms, a rigorous licensing mechanisms, a rigorous and well-functioning collective and well-functioning collective management system is important. management system is important That system includes in particular and should be encouraged by the rules of good governance, Member States. That system transparency and reporting, as includes in particular rules of well as the regular, diligent and good governance, transparency accurate distribution and payment and reporting, as well as the of amounts due to individual regular, diligent and accurate rightholders, as provided for by distribution and payment of Directive 2014/26/EU. Additional amounts due to individual appropriate safeguards should be rightholders, as provided for by available for all rightholders, who Directive 2014/26/EU. Additional should be given the opportunity to appropriate safeguards should be exclude the application of such available for all rightholders, who mechanisms to their works or should be given the opportunity to other subject-matter. Conditions exclude the application of such attached to those mechanisms licensing mechanisms or of such should not affect their practical exceptions to their works or other relevance for cultural heritage subject-matter. Conditions institutions. attached to those mechanisms should not affect their practical relevance for cultural heritage 5138/19 ANNEX Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 institutions. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 66 uses under the exception or limitation, or in relation to particular works or other subjectmatter or in relation to particular licences or uses under the exception or limitation, at any time before or under the duration of the licence or the uses under the exception or limitation. Conditions attached to those licensing mechanisms should not affect their practical relevance for cultural heritage institutions. It is important that when a rightholder excludes the application of such mechanisms or of such exception or limitation to one or more of their works or other subjectmatter, the informed collective management organisation does not continue to issue licences covering the relevant uses and any ongoing uses are terminated within a reasonable period, and, in the case they take place under a collective licence, that the informed collective LIMITE to those mechanisms should not affect their practical relevance for cultural heritage institutions. It is important that when a rightholder excludes the application of such mechanisms to one or more of their works or other subject-matter, the informed collective management organisation does not continue to issue licences covering the relevant uses and any ongoing uses are terminated within a reasonable period. Such exclusion by the rightholder should not affect their claim to remuneration for the actual use of the work or other subject-matter. ECOMP 3.B. Row 50. 51. COMMISSION PROPOSAL COM(2016)593 (25) Considering the variety of 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (25) Considering the variety of COUNCIL TEXT 9134/18 (24a) This Directive does not affect the possibility for Member States to determine the allocation of legal responsibility for the compliance of the licensing and the use of out-of-commerce works with the conditions set out in this Directive and for the compliance of the parties with the terms of those licenses. POSSIBLE COMPROMISE SOLUTION management organisation does not continue to issue licences covering the relevant uses. Such exclusion by the rightholders should not affect their claims to remuneration for the actual use of the work or other subject-matter under the licence. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] (24a) This Directive does not affect the possibility for Member States to determine the allocation of legal responsibility for the compliance of the licensing and the use of out-of-commerce works with the conditions set out in this Directive and for the compliance of the parties with the terms of those licenses. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 67 (25) Considering the variety of LIMITE (25) Considering the variety of ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 68 works and other subject-matter in the collections of cultural heritage institutions, it is important that the licensing mechanisms and the exception or limitation introduced by this Directive are available and can be used in practice for different types of works and other subject-matter, including photographs, software, phonograms, audiovisual works and unique works of art, irrespective of whether they have ever been commercially available. Never-in-commerce works may include posters, leaflets, trench journals or amateur audiovisual works, but also unpublished works or other subject-matter, without prejudice to other applicable legal constraints, such as national rules on moral rights. When a work is available in any of its different versions, such as subsequent editions of literary works and alternate cuts of cinematographic works, or in any LIMITE works and other subject-matter in the collections of cultural heritage institutions, it is important that the licensing mechanisms introduced by this Directive are available and can be used in practice for different types of works and other subject-matter, including photographs, software, phonograms, sound recordings and audiovisual works. and unique works of art, irrespective of whether they have ever been commercially available. Never-in-commerce works may include posters, leaflets, trench journals or amateur audiovisual works, but also unpublished works or other subject-matter, without prejudice to other applicable legal constraints, such as national rules on moral rights. When a work is available in any of its different versions, such as subsequent editions of literary works and alternate cuts of ECOMP 3.B. works and other subject-matter in works and other subject-matter in the collections of cultural heritage the collections of cultural heritage institutions, it is important that institutions, it is important that the licensing mechanisms the licensing mechanisms introduced by this Directive are introduced by this Directive are available and can be used in available and can be used in practice for different types of practice for different types of works and other subject-matter, works and other subject-matter, including photographs, sound including photographs, sound recordings and audiovisual works. recordings and audiovisual works. In order to reflect the specificities In order to reflect the specificities of different categories of works of different categories of works and other subject-matter as and other subject-matter as regards modes of publication and regards modes of publication and distribution and to facilitate the distribution and to facilitate the usability of those mechanisms, usability of those mechanisms, specific requirements and the solutions on the use of outprocedures may have to be of-commerce works introduced established by Member States for by this Directive, specific the practical application of those requirements and procedures may licensing mechanisms. It is have to be established by Member appropriate that Member States States for the practical application consult rightholders, users and of those licensing mechanisms. It collective management is appropriate that Member States organisations when doing so. consult rightholders, users cultural heritage institutions and collective management 5138/19 ANNEX Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 organisations when doing so. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 69 of its different manifestations, such as digital and printed formats of the same work, this work or other subject-matter should not be considered out of commerce. Conversely, the commercial availability of adaptations, including other language versions or audiovisual adaptations of a literary work, should not preclude the determination of the out-ofcommerce status of a work in a given language. In order to reflect the specificities of different types of works and other subject-matter as regards modes of publication and distribution and to facilitate the usability of those mechanisms, specific requirements and procedures may have to be established for the practical application of those licensing mechanisms, such as a time period which needs to have been elapsed since the first commercial availability of the LIMITE cinematographic works, or in any of its different manifestations, such as digital and printed formats of the same work, this work or other subject-matter should not be considered out of commerce. Conversely, the commercial availability of adaptations, including other language versions or audiovisual adaptations of a literary work, should not preclude the determination of the out-ofcommerce status of a work in a given language. In order to reflect the specificities of different categories types of works and other subject-matter as regards modes of publication and distribution and to facilitate the usability of those mechanisms, specific requirements and procedures may have to be established by Member States for the practical application of those licensing mechanisms, such as a ECOMP 3.B. Row 52. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 time period which needs to have been elapsed since the first commercial availability of the work. It is appropriate that Member States consult rightholders, users and collective management organisations when doing so. POSSIBLE COMPROMISE SOLUTION work. It is appropriate that Member States consult rightholders, cultural heritage institutionsusers and collective management organisations when doing so. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 70 (25a) When determining whether works and other subject-matter are out of commerce, a reasonable effort should be required to assess their availability to the public in the customary channels of commerce, taking into account the characteristics of the particular work or set of works. Member States should be free to determine the allocation of responsibilities for making the reasonable effort. The reasonable effort should not have to be repeated over time but it should LIMITE (25a) When determining whether works and other subject-matter are out of commerce, a reasonable effort should be required to assess their availability to the public in the customary channels of commerce, taking into account the characteristics of the particular work or set of works. Member States should be free to determine the allocation of responsibilities for making the reasonable effort. The reasonable effort should not ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 71 also take account of any easily accessible evidence of upcoming availability of works in the customary channels of commerce. A work-by-work assessment should only be required when this is considered reasonable in view of the availability of relevant information, the likelihood of commercial availability and the expected transaction cost. The verification of availability should normally take place in the Member State where the cultural heritage institution is established, unless verification across borders is considered reasonable, for example when there is easily available information that a literary work was first published in a given language version in another Member State. In many cases the out-of-commerce status of a set of works could be determined through a proportionate mechanism, such as sampling. The limited availability LIMITE have to be repeated over time but it should also take account of any easily accessible evidence of upcoming availability of works in the customary channels of commerce. A workby-work assessment should only be required when this is considered reasonable in view of the availability of relevant information, the likelihood of commercial availability and the expected transaction cost. The verification of availability should normally take place in the Member State where the cultural heritage institution is established, unless verification across borders is considered reasonable, for example when there is easily available information that a literary work was first published in a given language version in another Member State. In many cases the out-ofcommerce status of a set of ECOMP 3.B. Row 53. COMMISSION PROPOSAL COM(2016)593 (26) For reasons of international comity, the licensing mechanisms for the digitisation and dissemination of out-ofcommerce works provided for in this Directive should not apply to works or other subject-matter that are first published or, in the absence of publication, first broadcast in a third country or, in the case of cinematographic or audiovisual works, to works the producer of which has his headquarters or habitual residence in a third country. Those 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 works could be determined through a proportionate mechanism, such as sampling. The limited availability of a work, such as its availability in second-hand shops, or the theoretical possibility to obtain a licence to a work should not be considered as availability to the public in the customary channels of commerce. POSSIBLE COMPROMISE SOLUTION of a work, such as its availability in second-hand shops, or the theoretical possibility to obtain a licence to a work should not be considered as availability to the public in the customary channels of commerce. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 72 (26) For reasons of international comity, the licensing mechanism and the exception or limitation provided for in this Directive for the digitisation and dissemination of out-ofcommerce works provided for in this Directive should not apply to sets of out-of-commerce works or other subject-matter when there is available evidence to presume that they predominantly consist of works or other subject-matter of third countries, unless the concerned collective management LIMITE (26) For reasons of international (26) For reasons of international comity, the licensing mechanisms comity, the licensing mechanisms and the exception for the for the digitisation and digitisation and dissemination of dissemination of out-ofout-of-commerce works provided commerce works provided for in for in this Directive should not this Directive should not apply to apply to works or other subjectworks or other subject-matter that matter that are first published or, are first published or, in the in the absence of publication, first absence of publication, first broadcast in a third country or, in broadcast in a third country or, in the case of cinematographic or the case of cinematographic or audiovisual works, to works the audiovisual works, to works the producer of which has his producer of which has his headquarters or habitual residence headquarters or habitual in a third country. Those residence in a third country. ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 ECOMP 3.B. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION organisation is sufficiently representative for that third country, for example via a representation agreement. This assessment can be based on the evidence available following the reasonable effort to determine the out-of-commerce status of the works, without the need to search for further evidence. A work-bywork assessment of the origin of the out-of-commerce works should only be required insofar as it is also required for the reasonable effort to determine their commercial availability. BM/ EN 73 [tentatively agreed at TM, confirmed at trilogue 13/12/2018] LIMITE mechanisms should also not apply mechanisms should also not apply Those mechanisms should also to works or other subject-matter to works or other subject-matter not apply to works or other of third country nationals except of third country nationals except subject-matter of third country when they are first published or, when they are first published or, nationals except when they are in the absence of publication, first in the absence of publication, first first published or, in the absence broadcast in the territory of a broadcast in the territory of a of publication, first broadcast in Member State or, in the case of Member State or, in the case of the territory of a Member State cinematographic or audiovisual cinematographic or audiovisual or, in the case of cinematographic works, to works of which the works, to works of which the or audiovisual works, to works of producer's headquarters or producer's headquarters or which the producer's headquarters habitual residence is in a Member habitual residence is in a Member or habitual residence is in a State. State. Member Statesets of out-ofcommerce works or other subject-matter when there is available evidence to presume that they predominantly consist of works or other subjectmatter of third countries, unless the concerned collective management organisation is sufficiently representative for that third country, for example via a representation agreement. This assessment can be based on the evidence available following the reasonable effort to determine the out-of5138/19 ANNEX Row 54. COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 commerce status of the works, without the need to search for further evidence. A work-bywork assessment of the origin of the out-of-commerce works should only be required insofar as it is also required for the reasonable effort to determine their commercial availability. ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION BM/ EN 74 (27) The contracting cultural heritage institutions and collective management organisations should remain free to agree on the territorial scope of the licence, including the possibility to cover all Member States, the licence fee and the allowed uses. Uses covered by such licence should not be for profit making purpose, including when copies are distributed by the cultural heritage institution, such as in the case of promotional material about an exhibition. At the same time, as the digitisation of the collections of cultural LIMITE (27) As mass digitisation (27) As mass digitisation projects (27) As mass The contracting projects can entail significant can entail significant investments cultural heritage institutions investments by cultural heritage by cultural heritage institutions, and collective management institutions, any licences granted any licences granted under the organisations should remain under the mechanisms provided mechanisms provided for in this free to agree on the territorial for in this Directive should not Directive should not prevent them scope of the licence, the licence prevent them from generating from generating reasonable fee and the allowed uses. Uses reasonable revenues in order to revenues in order to cover covered by such licence should cover the costs of the licence and covering the costs of the licence not be for profit making the costs of digitising and and the costs of digitising and purpose, including when copies disseminating the works and other disseminating the works and other are distributed by the cultural subject-matter covered by the subject-matter covered by the heritage institution, such as in licence. licence. the case of promotional material about an exhibition. At the same time, as the digitisation projectsof the collections of cultural heritage institutions 5138/19 ANNEX Row 55. COMMISSION PROPOSAL COM(2016)593 (28) Information regarding the future and ongoing use of out-ofcommerce works and other subject-matter by cultural heritage institutions on the basis of the licensing mechanisms provided for in this Directive and the arrangements in place for all 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (28) Information regarding the future and ongoing use of out-ofcommerce works and other subject-matter by cultural heritage institutions on the basis of the licensing mechanisms or of the exception provided for in this Directive and the arrangements in COUNCIL TEXT 9134/18 can entail significant investments by cultural heritage institutions, any licences granted under the mechanisms provided for in this Directive should not prevent themcultural heritage institutions from generating reasonable revenues in order to coverfor the purposes of covering the costs of the licence and the costs of digitising and disseminating the works and other subject-matter covered by the licence. POSSIBLE COMPROMISE SOLUTION heritage institutions can entail significant investments, any licences granted under the mechanisms provided for in this Directive should not prevent cultural heritage institutions from generating reasonable revenues for the exclusive purposes of covering the costs of the licence and the costs of digitising and disseminating the works and other subject-matter covered by the licence. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 75 (28) Information regarding the future and ongoing use of out-ofcommerce works and other subject-matter by cultural heritage institutions on the basis of the licensing mechanisms provided for in this Directive and the arrangements in place for all LIMITE (28) Information regarding the future and ongoing use of out-ofcommerce works and other subject-matter by cultural heritage institutions on the basis of the licensing mechanisms provided for in this Directive and the arrangements in place for all ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 rightholders to exclude the application of licences to their works or other subject-matter should be adequately publicised. This is particularly important when uses take place across borders in the internal market. It is therefore appropriate to make provision for the creation of a single publicly accessible online portal for the Union to make such information available to the public for a reasonable period of time before the cross-border use takes place. Under Regulation (EU) No 386/2012 of the European Parliament and of the Council11, the European Union Intellectual Property Office is entrusted with certain tasks and activities, financed by making use of its own budgetary measures, aiming at facilitating and supporting the activities of national authorities, the private 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 place for all rightholders to exclude the application of licences or of the exception to their works or other subjectmatter should be adequately publicised. This is particularly important when uses take place across borders in the internal market. It is therefore appropriate to make provision for the creation of a single publicly accessible online portal for the Union to make such information available to the public for a reasonable period of time before the crossborder use takes place. Under Regulation (EU) No 386/2012 of the European Parliament and of the Council11, the European Union Intellectual Property Office is entrusted with certain tasks and activities, financed by making use of its own budgetary measures, aiming at facilitating and supporting the activities of COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 76 rightholders to exclude the application of licences or of the exception or limitation to their works or other subject-matter should be adequately publicised both before a licence is granted and during the operation of the licencethe use under a licence or the exception or limitation, as appropriate. This is particularly important when uses take place across borders in the internal market. It is therefore appropriate to make provision for the creation of a single publicly accessible online portal for the Union to make such information available to the public for a reasonable period of time before the use takes place. This portal should facilitate the possibility for rightholders to exclude the application of licences to their works or other subject-matter. Under Regulation (EU) No LIMITE rightholders to exclude the application of licences to their works or other subject-matter should be adequately publicised. both before a licence is granted and during the operation of the licence as appropriate. This is particularly important when uses take place across borders in the internal market. It is therefore appropriate to make provision for the creation of a single publicly accessible online portal for the Union to make such information available to the public for a reasonable period of time before the cross-border use takes place. This portal should facilitate the possibility for rightholders to exclude the application of licences to their works or other subject-matter. Under Regulation (EU) No 386/2012 of the European Parliament and of the Council11, the European ECOMP 3.B. Row 11 COMMISSION PROPOSAL COM(2016)593 sector and Union institutions in the fight against, including the prevention of, infringement of intellectual property rights. It is therefore appropriate to rely on that Office to establish and manage the European portal making such information available. EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 national authorities, the private sector and Union institutions in the fight against, including the prevention of, infringement of intellectual property rights. It is therefore appropriate to rely on that Office to establish and manage the European portal making such information available. COUNCIL TEXT 9134/18 Union Intellectual Property Office is entrusted with certain tasks and activities, financed by making use of its own budgetary measuresmeans, aiming at facilitating and supporting the activities of national authorities, the private sector and Union institutions in the fight against, including the prevention of, infringement of intellectual property rights. It is therefore appropriate to rely on that Office to establish and manage the European portal making such information available. In addition to making the information available through the portal, further appropriate publicity measures may need to be taken on a case-by-case basis in order to increase the awareness of affected ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 386/2012 of the European Parliament and of the Council11, the European Union Intellectual Property Office is entrusted with certain tasks and activities, financed by making use of its own budgetary means, aiming at facilitating and supporting the activities of national authorities, the private sector and Union institutions in the fight against, including the prevention of, infringement of intellectual property rights. It is therefore appropriate to rely on that Office to establish and manage the European portal making such information available. In addition to making the information available through the portal, further appropriate publicity measures may need to be taken on a case-by-case basis in order to LIMITE BM/ EN 77 Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for Harmonization in the Internal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public and private-sector representatives as a European Observatory on Infringements of Intellectual Property Rights (OJ L 129, 16.5.2012, p. 1–6). 5138/19 ANNEX Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION increase the awareness of affected rightholders, for example through the use of additional channels of communication to reach a wider public. The necessity, the nature and the geographic scope of the additional publicity measures should depend on the characteristics of the relevant outof-commerce works or other subject-matter, the terms of the licences or the type of use under the exception or limitation, and the existing practices in Member States. Publicity measures should be effective without the need to inform each rightholder individually. BM/ EN 78 (-28a) In order to ensure that the licensing mechanisms established by this Directive for out-of-commerce works are relevant and function properly, that rightholders are LIMITE rightholders, for example through the use of additional channels of communication to reach a wider public. The necessity, the nature and the geographic scope of the additional publicity measures should depend on the characteristics of the relevant out-of-commerce works or other subject-matter, the terms of the licences and the existing practices in Member States. Publicity measures should be effective without the need to inform each rightholder individually. ECOMP 3.B. Row 56. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION adequately protected, that licences are properly publicised and that legal clarity is ensured with regard to the representativeness of collective management organisations and the categorisation of works, Member States should foster sector-specific stakeholder dialogue. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 79 (28a) The measures provided for in this Directive to facilitate the collective licensing of rights in out-of-commerce works or other subject-matter that are permanently in the collections of cultural heritage institutions should be without prejudice to the use of such works or other subject-matter under exceptions or limitations provided for in Union law or under other licences with an extended effect, where LIMITE (28a) The measures provided for in this Directive to facilitate the collective licensing of rights in out-of-commerce works or other subject-matter that are permanently in the collections of cultural heritage institutions should be without prejudice to the use of such works or other subject-matter under exceptions or limitations provided for in Union law or under other licences with an ECOMP 3.B. Row 57. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 extended effect, where such licensing is not based on the out-of-commerce status of the covered works or other subject matter. These measures should also be without prejudice to national mechanisms for the use of out of commerce works based on licences between collective management organisation and users other than cultural heritage institutions. POSSIBLE COMPROMISE SOLUTION such licensing is not based on the out-of-commerce status of the covered works or other subject matter. These measures should also be without prejudice to national mechanisms for the use of out of commerce works based on licences between collective management organisation and users other than cultural heritage institutions. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 80 (28b) Mechanisms of collective licensing with an extended effect allow a collective management organisation to offer licences as a collective licensing body on behalf of rightholders irrespective of whether they have authorised the organisation to do so. Systems built on such mechanisms, such as extended collective licensing, legal mandates or presumptions of representation, are a well- LIMITE (28b) Mechanisms of collective licensing with an extended effect allow a collective management organisation to offer licences as a collective licensing body on behalf of rightholders irrespective of whether they have authorised the organisation to do so. Systems built on such mechanisms, such as extended collective licensing, legal ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION established practice in several Member States and may be used in different areas. A functioning copyright framework that works for all parties requires the availability of these proportionate, legal mechanisms for the licensing of works. Member States should therefore be able to rely on solutions, allowing relevant collective management licensing organisations , which are owned or controlled by their rightholder members (or entities representing rightholders) or organised on a not for profit basis, to offer licences covering potentially large volumes of works or other subject-matter for certain types of use, and distribute the revenue received to rightholders, in accordance with Directive 2014/26/EU. BM/ EN 81 [tentatively agreed at TM, LIMITE mandates or presumptions of representation, are a wellestablished practice in several Member States and may be used in different areas. A functioning copyright framework that works for all parties requires the availability of these proportionate, legal mechanisms for the licensing of works. Member States should therefore be able to rely on solutions, allowing relevant licensing organisations, which are owned or controlled by their rightholder members (or entities representing rightholders) or organised on a not for profit basis, to offer licences covering potentially large volumes of works or other subject-matter for certain types of use, and distribute the revenue received to rightholders. ECOMP 3.B. Row 58. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION confirmed at trilogue 13/12/2018] BM/ EN 82 (28c) In the case of some uses, together with the usually large amount of works involved, the transaction cost of individual rights clearance with every concerned rightholder is prohibitively high and without effective collective licensing mechanisms all the required transactions in these areas to enable the use of these works or other subject matter are unlikely to take place. Extended collective licensing by collective management organisations and similar mechanisms have made it may make it possible to conclude agreements in these areas affected by this market failure where traditional collective licensing based on an authorisation by rightholders does not provide an exhaustive solution for covering all works and other subject-matter to be LIMITE (28c) In the case of some uses, together with the usually large amount of works involved, the transaction cost of individual rights clearance with every concerned rightholder is prohibitively high and without effective collective licensing mechanisms all the required transactions in these areas to enable the use of these works or other subject matter are unlikely to take place. Extended collective licensing and similar mechanisms have made it possible to conclude agreements in areas affected by this market failure where traditional collective licensing does not provide an exhaustive solution for covering all works and other subject-matter to be used. These mechanisms serve as a complement to collective management based on ECOMP 3.B. Row 59. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 individual mandates, by providing full legal certainty to users. At the same time, they provide a further opportunity to right holders to benefit from the legitimate use of their works. POSSIBLE COMPROMISE SOLUTION used. These mechanisms serve as a complement to collective management based on individual mandatesauthorisation by rightholders, by providing full legal certainty to users in certain cases. At the same time, they provide an further opportunity to rights holders to benefit from the legitimate use of their works. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 83 (28d) Given the increasing importance of the ability to offer flexible licensing solutions in the digital age, and the increasing use of such schemes, in Member States, should be ablellowed to provide it is beneficial to further clarify in Union law the status of for licensing mechanisms which allowing permit collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all LIMITE (28d) Given the increasing importance of the ability to offer flexible licensing solutions in the digital age, and the increasing use of such schemes in Member States, it is beneficial to further clarify in Union law the status of licensing mechanisms allowing collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 84 rightholders have authorised the organisation to do so. Member States should have the ability to maintain and introduce such schemes in accordance with their nationallegal traditions, practices or circumstances, subject to the safeguards provided for in this Directive and in full respect of Union law and their international obligations of the Union. related to copyright. These schemes would only have effect in the territory of the Member State concerned, unless otherwise provided for in Union law. Member States should have flexibility in choosing the specific type of mechanism allowing licences for works or other subject-matter to extend to the rights of rightholders that have not authorised the organisation that concludes the agreement, provided that this is in compliance with Union law, including the rules on collective LIMITE rightholders have authorised the organisation to do so. Member States should have the ability to maintain and introduce such schemes in accordance with their legal traditions, practices or circumstances, subject to the safeguards provided for in this Directive and in full respect of Union law and their international obligations related to copyright. These schemes would only have effect in the territory of the Member State concerned, unless otherwise provided for in Union law. Member States should have flexibility in choosing the specific type of mechanism allowing licences for works or other subject-matter to extend to the rights of rightholders that have not authorised the organisation that concludes the agreement, as long as it guarantees sufficient protection ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION LIMITE BM/ EN 85 [tentatively agreed at TM, of the non-member rights management provided in rightholders. Such mechanisms Directive 2014/26/EU. In may include extended collective particular, such schemes should also ensure and thatas long as it licensing, legal mandate and presumptions of representation. guarantees sufficient protection of The provisions of this Directive the Article 7 of Directive 2014/26/EUn applies to nonconcerning collective licensing member rightholders that are not should not affect existing possibilities of Member States members of the organisation that concludes the agreement. to apply mandatory collective management or other collective Such mechanisms may include extended collective licensing, licensing mechanisms with an extended effect, such as the one legal mandate and presumptions of representation. The provisions included in Article 3 of of this Directive concerning Directive 93/83/EEC. extended collective licensing should not affect existing possibilities of Member States to apply mandatory collective management or other collective licensing mechanisms with an extended effect, such as the one included in Article 3 of Directive 93/83/EEC. ECOMP 3.B. Row 60. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION confirmed at trilogue 13/12/2018] BM/ EN 86 (28e)It is important that such mechanisms are only applied in well-defined areas of uses, where obtaining authorisations from rightholders on an individual basis is typically onerous and impractical to a degree that makes the required licensing transaction, i.e. a licence that covers all the involved rightholders unlikely to occur due to the nature of the use or of the types of works concerned. Such mechanisms should be based on objective, transparent and nondiscriminatory criteria as regards the treatment of rightholders including nonmembers. In particular the mere fact that the affected rightholders are not nationals or residents of or established in the Member State of the user who is seeking a licence, should not be on its own merits a LIMITE (28e) It is important that such mechanisms are only applied in well-defined areas of uses, where obtaining authorisations from rightholders on an individual basis is typically onerous and impractical to a degree that makes the required licensing transaction, i.e. a licence that covers all the involved rightholders unlikely to occur due to the nature of the use or of the types of works concerned. It is equally important that the licensed use neither affects adversely the economic value of the relevant rights nor deprives rightholders of significant commercial benefits. Moreover, Member States should ensure that appropriate safeguards are in place to protect the legitimate interests of rightholders that are not represented by the ECOMP 3.B. Row 61. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 organisation offering the licence. POSSIBLE COMPROMISE SOLUTION reason to considermake the clearance of rights so onerous and impractical to justify the use of such mechanisms. It is equally important that the licensed use neither affects adversely the economic value of the relevant rights nor deprives rightholders of significant commercial benefits. Moreover, Member States should ensure that appropriate safeguards are in place to protect the legitimate interests of rightholders that are not represented by the organisation offering the licence whichthat apply in a nondiscriminatory manner. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 87 (28f) Specifically, to justify the extended effect of the mechanisms, the organisation should be, on the basis of authorisations from rightholders, LIMITE (28f) Specifically, to justify the extended effect of the mechanisms, the organisation should be, on the basis of authorisations from ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 88 sufficiently representative of the types of works or other subjectmatter and of the rights which are the subject of the licence. Member States should determine the requirements for those organisations to be sufficiently representative in accordance with Directive 2014/26/EU, taking into account the category of rights managed by the collective rights management organisation, the ability of the organisation to manage the rights effectively and the creative sector in which it operates and also whether the organisation covers a significant number of rightholders in the relevant type of works or other subjectmatter who have given a mandate allowing the licensing of the relevant type of use, and in accordance with Directive 2014/26/EU. To ensure legal certainty and confidence in the LIMITE rightholders, sufficiently representative of the types of works or other subject-matter and of the rights which are the subject of the licence. To ensure legal certainty and confidence in the mechanisms Member States may determine the allocation of legal responsibility for uses authorised by the licence agreement. Equal treatment should be guaranteed to all rightholders whose works are exploited under the licence as regards, notably, access to information on the licensing and the distribution of remuneration. Publicity measures should be effective throughout the duration of the licence without the need to inform each rightholder individually. In order to ensure that rightholders can easily retain control of their works, and prevent any uses of their works that would be prejudicial ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION LIMITE BM/ EN 89 mechanisms Member States may to their interests, rightholders determine the allocation of legal must be given an effective responsibility for uses authorised opportunity to exclude the application of such mechanisms by the licence agreement. Equal to their works or other subject- treatment should be guaranteed to matter for all uses and works or all rightholders whose works are exploited under the licence as other subject-matter, or for specific uses and works or other regards, including in particular as regards notably, access to subject-matter. In such cases, information on the licensing and any ongoing uses should be terminated within a reasonable the distribution of remuneration. Publicity measures should be period. Member States may effective throughout the duration also decide that additional of the licence without imposing measures are appropriate to protect rightholders. disproportionate administrative burdens on users, collective management organisations and rightholders and without the need to inform each rightholder individually. In order to ensure that rightholders can easily retain regain control of their works, and prevent any uses of their works that would be prejudicial to their interests, rightholders must be given an effective opportunity to exclude the application of such ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 90 COUNCIL TEXT 9134/18 BM/ EN mechanisms to their works or other subject-matter for all uses and works or other subjectmatter, or for specific uses and works or other subject-matter, at any time including before the conclusion of a licence and or under the durationduring the term of the licence. In such cases, any ongoing uses should be terminated within a reasonable period. Such exclusion by the rightholders should not affect their claims to receive remuneration for the actual use of the work or other subjectmatter under the licence. Member States may also decide that additional measures are appropriate to protect rightholders. This could include, for example, encouraging the exchange of information among collective management organisations and other interested parties across the Union to raise awareness about LIMITE Row 62. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION these mechanisms and the rightholders' possibility to exclude their works or other subject-matter from them. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 91 (28g) Member States should ensure that the purpose and scope of any licence granted as a result of these mechanisms, as well as the possible users, should always be carefully and clearly defined in national legislation or, if the underlying legislation is a general provision, in the licensing practices applied as a result of such general provisions, or in the licences granted. The ability to operate a licence under these mechanisms should also be limited to collective rights management organisations which are either owned or controlled by their right holder members or which operate on a LIMITE (28g) Member States should ensure that the purpose and scope of any licence granted as a result of these mechanisms, as well as the possible users, should always be carefully and clearly defined in national legislation or, if the underlying legislation is a general provision, in the licensing practices applied as a result of such general provisions, or in the licences granted. The ability to operate a licence under these mechanisms should also be limited to organisations which are either owned or controlled by their right holder members or which operate on a not for ECOMP 3.B. Row 63. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 profit basis, regulated by national law implementing Directive 2014/26/EU. POSSIBLE COMPROMISE SOLUTION not for profit basis, regulated by national law implementing which are subject to national law implementing Directive 2014/26/EU. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 92 (28h) Given the different traditions and experiences with extended collective licensing across Member States and their applicability to rightholders irrespective of their nationality or their Member State of residence, it is important to ensure transparency and dialogue at Union level about the practical functioning of these mechanisms, including as regards the effectiveness of safeguards for rightholders, their usability, the effect on rightsholders who are not members and/or who are nationals of, or resident in, another Member State, the LIMITE (28h) Given the different traditions and experiences with extended collective licensing across Member States and their applicability to rightholders irrespective of their nationality or their Member State of residence, it is important to ensure transparency and dialogue at Union level about the practical functioning of these mechanisms, including as regards the effectiveness of safeguards for rightholders, their usability and the potential need to lay down rules to give such schemes cross-border effect within the internal ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 93 impact on the cross border provision of services, and including the potential need to lay down rules to give such schemes cross-border effect within the internal market. To ensure transparency, information about the use of such mechanisms under this Directive should be regularly published by the Commission. Member States that have introduced such mechanisms should therefore inform the Commission about relevant national legislation and its application in practice, including scopes and types of licensing introduced on the basis of general legislation, the scale of licensing and the collective management organisations involved. Such information should be discussed with Member States in the contact committee referred to in Article 12(3) of Directive 2001/29) On/EC. The Commission should publish a report by 31 LIMITE market. To ensure transparency, information about the use of such mechanisms under this Directive should be regularly published by the Commission. Member States that have introduced such mechanisms should therefore inform the Commission about relevant national legislation and its application in practice, including scopes and types of licensing introduced on the basis of general legislation, the scale of licensing and the collective management organisations involved. Such information should be discussed with Member States in the contact committee referred to in Article 12(3) of Directive 2001/29) On/EC. The Commission should publish a report by 31 December 2020 on the use of such mechanisms in the Union ECOMP 3.B. Row 64. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (28a) In order to ensure that the licensing mechanisms established for out-of-commerce works are relevant and function properly, that rightholders are adequately protected under those mechanisms, that licences are properly publicised and that legal clarity is ensured with regard to the representativeness of collective management organisations and the categorisation of works, Member COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION December 202010 April 2021 on the use of such mechanisms in the Union and their impact on licensing and rightholders, on the dissemination of cultural content and on the cross-border provision of services in the area of collective management of copyright and related rights, and competition. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] [EP proposal covered as recital 28a in line 55] BM/ EN 94 [tentatively agreed at TM, confirmed at trilogue 13/12/2018] LIMITE and their impact on licensing and rightholders. ECOMP 3.B. Row 65. COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 States should foster sectorspecific stakeholder dialogue. ECOMP 3.B. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 95 (29) Video-on-demand services have the potential to play a decisive role in the dissemination of audiovisual works across the European Union. However, the availability of those works, in particular European works, on video-on-demand services remains limited. Agreements on the online exploitation of such works may be difficult to conclude due to issues related to the licensing of rights. Such issues may, for instance, appear when the holder of the rights for a given territory has low economic incentive to exploit a work online and does not license or holds back the online rights, which can lead to the unavailability of audiovisual works on video-ondemand services. Other issues may be linked to the windows of LIMITE (29) On-demand services have (29) On-demand services have (29) Video-on-demand services the potential to play a decisive the potential to play a decisive have the potential to play a role in the dissemination of role in the dissemination of decisive role in the dissemination European works across the European works across the of European audiovisual works European Union. However, European Union. However, across the European Union. agreements on the online agreements on the online However, agreements the exploitation of such works may exploitation of such works may availability of those works, in face difficulties related to the face difficulties related to the particular European works, on licensing of rights. Such issues licensing of rights. Such issues video-on-demand services may, for instance, appear when may, for instance, appear when remains limited. Agreements on the holder of the rights for a given the holder of the rights for a given the online exploitation of such territory is not interested in the territory is not interested in the works may be difficult to online exploitation of the work or online exploitation of the work or conclude due to issues face where there are issues linked to where there are issues linked to difficulties related to the licensing the windows of exploitation. the windows of exploitation. of rights. Such issues may, for instance, appear when the holder of the rights for a given territory is not interested in the has low economic incentive to exploit a work online exploitation of the work or where there are issues and does not license or holds back the online rights, which can lead to the unavailability of 5138/19 ANNEX Row 66. COMMISSION PROPOSAL COM(2016)593 (30) To facilitate the licensing of rights in audiovisual works to video-on-demand platforms, this Directive requires Member States to set up a negotiation mechanism allowing parties willing to conclude an agreement to rely on the assistance of an impartial body. The body should meet with the parties and help with the negotiations by providing professional and external advice. Against that background, Member States should decide on the conditions of the functioning of the negotiation mechanism, including the timing and duration of the assistance to negotiations and the bearing of the costs. Member States should ensure that administrative and financial burdens remain proportionate to 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (30) To facilitate the licensing of rights in audiovisual works to video-on-demand platforms, this Directive requires Member States to should set up a negotiation mechanism, managed by an existing or newly established national body, allowing parties willing to conclude an agreement to rely on the assistance of an impartial body. The participation in this negotiation mechanism and the subsequent conclusion of agreements should be voluntary. Where a negotiation involves parties from different Member States, those parties should agree beforehand on the competent Member State, should they decide to rely on the negotiation mechanism. The body should meet with the parties COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION exploitation. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] 96 audiovisual works on video-ondemand services. Other issues may be linked to the windows of exploitation. BM/ EN (30) To facilitate the licensing of rights in audiovisual works to video-on-demand services, this Directive requires Member States to provide for a negotiation mechanism allowing parties willing to conclude an agreement to rely on the assistance of an impartial body or of one or more mediators. For that purpose, Member States may either create a new body or rely on an existing one that fulfils the conditions established by this Directive. Member States may designate one or more competent bodies or mediators. The body or the mediators should meet with the parties and help with the negotiations by providing professional, impartial and external advice. Where a LIMITE (30) To facilitate the licensing of rights in audiovisual works to video-on-demand platformsservices, this Directive requires Member States to set upprovide for a negotiation mechanism allowing parties willing to conclude an agreement to rely on the assistance of an impartial body. The body or of one or more mediators. For that purpose, Member States may either create a new body or rely on an existing one that fulfils the conditions established by this Directive. Member States may designate one or more competent bodies or mediators. The body or the mediators should meet with the parties and help with the negotiations by providing professional and ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 guarantee the efficiency of the negotiation forum. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 97 negotiation involves parties from different Member States, those parties should agree beforehand on the competent Member State, should they decide to rely on the negotiation mechanism. The body or the mediators could meet with the parties to facilitate the start of negotiations or in the course of the negotiations to facilitate the conclusion of an agreement. The participation in this negotiation mechanism and the subsequent conclusion of agreements should be voluntary and should not affect the parties' contractual freedom. Against that background, Member States should be free to decide on the concrete functioning of the negotiation mechanism, including the timing and duration of the assistance to negotiations and the bearing of the costs. Member States should ensure that administrative and financial LIMITE and help with the negotiations by external advice. The body or the providing professional, impartial mediators could meet with the and external advice. Against that parties to facilitate the start of background, Member States negotiations or in the course of should decide on the conditions of the negotiations to facilitate the the functioning of the negotiation conclusion of an agreement. mechanism, including the timing The use of and the participation and duration of the assistance to in the negotiation mechanism negotiations and the bearing should remain voluntary and division of the any costs arising, should not affect the parties' contractual freedom. Against and the composition of such bodies. Member States should that background, Member States ensure that administrative and should be free to decide on the financial burdens remain conditions of theconcrete proportionate to guarantee the functioning of the negotiation efficiency of the negotiation mechanism, including the timing forum. and duration of the assistance to negotiations and the bearing of the costs. Member States should ensure that administrative and financial burdens remain proportionate to guarantee the efficiency of the negotiation forummechanism. ECOMP 3.B. Row 67. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (30a) The preservation of the Union’s heritage is of the utmost importance and should be strengthened for the benefit of future generations. This should be achieved notably through the protection of published heritage. To this end, a Union legal deposit should be created in order to ensure that publications concerning the Union, such as Union law, Union history and integration, Union policy and Union democracy, institutional and parliamentary affairs, and politics, and, thereby, the Union’s intellectual record and future published heritage, are ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 98 COUNCIL TEXT 9134/18 burdens remain proportionate to guarantee the efficiency of the negotiation mechanism. [tentatively agreed at TM, confirmed at trilogue 13/122018] BM/ EN [deleted] LIMITE Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 collected systematically. Not only should such heritage be preserved through the creation of a Union archive for publications dealing with Unionrelated matters, but it should also be made available to Union citizens and future generations. The European Parliament Library, as the Library of the only Union institution directly representing Union citizens, should be designated as the Union depository library. In order not to create an excessive burden on publishers, printers and importers, only electronic publications, such as e-books, ejournals and e-magazines should be deposited in the European Parliament Library, which should make available for readers publications covered by the Union legal deposit at the European Parliament Library for the purpose of research or study and under the control of ECOMP 3.B. 99 POSSIBLE COMPROMISE SOLUTION BM/ EN COUNCIL TEXT 9134/18 LIMITE Row 68. COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 the European Parliament Library. Such publications should not be made available online externally. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 100 (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. The wide availability of press publications online has given rise to the emergence of new online services, such as news aggregators or media monitoring services, for which the reuse of press publications constitutes an important part of their business models and a source of revenues. Publishers of press publications are facing problems in licensing the online use of their publications to the providers of these kind of services, making it more difficult LIMITE (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, publishersThe wide availability of press publications online has given rise to the emergence of new online services, such as news aggregators or media monitoring services, for which the reuse of press publications constitutes an important part of their business models and a source of revenues. Publishers of press publications are facing problems in licensing the online use of their publications and ECOMP 3.B. (31) A free and pluralist press is (31) A free and pluralist press is essential to ensure quality essential to ensure quality journalism and citizens' access to journalism and citizens' access to information. It provides a information. It provides a fundamental contribution to fundamental contribution to public debate and the proper public debate and the proper functioning of a democratic functioning of a democratic society. In the transition from society. The increasing print to digital, publishers of press imbalance between powerful publications are facing problems platforms and press publishers, in licensing the online use of their which can also be news agencies, publications and recouping their has already led to a remarkable investments. In the absence of regression of the media recognition of publishers of press landscape on a regional level. In publications as rightholders, the transition from print to digital, licensing and enforcement in the publishers and news agencies of digital environment is often press publications are facing complex and inefficient. problems in licensing the online use of their publications and recouping their investments. In the absence of recognition of publishers of press publications as 5138/19 ANNEX Row 69. COMMISSION PROPOSAL COM(2016)593 (32) The organisational and financial contribution of 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 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 rightholders, licensing and enforcement in the digital environment is often complex and inefficient. (32) The organisational and financial contribution of publishers in producing press publications needs to be recognised and further encouraged to ensure the sustainability of the publishing industry and thereby to guarantee the availability of reliable information. It is therefore necessary for Member States to provide at Union level a harmonised legal protection for COUNCIL TEXT 9134/18 recoupingto the providers of these kind of services, making it more difficult for them to recoup their investments. In the absence of recognition of publishers of press publications as rightholders, licensing and enforcement of rights in press publications regarding online uses by information society service providers in the digital environment isare often complex and inefficient. POSSIBLE COMPROMISE SOLUTION for them to recoup their investments. In the absence of recognition of publishers of press publications as rightholders, licensing and enforcement of rights in press publications regarding online uses by information society service providers in the digital environment are often complex and inefficient. BM/ EN 101 (32) The organisational and financial contribution of publishers in producing press publications needs to be recognised and further encouraged to ensure the sustainability of the publishing industry and thereby to foster the availability of reliable information. It is therefore necessary to provide at Union level a harmonised legal protection for press publications LIMITE 1. (32) The organisational and financial contribution of 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 legalle-gal protection for press publications in respect of digitalonline uses by information society service ECOMP 3.B. Row 12 COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 through the introduction, in Union press publications in respect of law, of rights related to copyright the Union for digital uses. Such for the reproduction and making protection should be effectively available to the public of press guaranteed through the publications in respect of digital introduction, in Union law, of uses. rights related to copyright for the reproduction and making available to the public of press publications in respect of digital uses in order to obtain fair and proportionate remuneration for such uses. Private uses should be excluded from this reference. In addition, the listing in a search engine should not be considered as fair and proportionate remuneration. COUNCIL TEXT 9134/18 providers, leaving unaffected current copyright rules in Union law applicable to uses of press publications by other users, including individual users. 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 usespublished by publishers established in a Member State in respect of online uses by information society service providers within the meaning of Directive (EU) 2015/1535 of the European Parliament and of the Council12. The legal protection for press publications provided for by this directive should only benefit publishers established ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION in respect of online uses by information society service providers, leaving unaffected current copyright rules in Union law applicable to uses of press publications by individual users, including when they share press publications online. 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 published by publishers established in a Member State in respect of online uses by information society service providers within the meaning of Directive (EU) 2015/1535 of the European Parliament and of the Council12. The legal protection for press publications provided for by this LIMITE BM/ EN 102 Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1–15). 5138/19 ANNEX Row 70. COMMISSION PROPOSAL COM(2016)593 (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 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (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 COUNCIL TEXT 9134/18 in a Member State in the meaning of the Treaty of the functioning of the European Union, i.e. when they have their registered office, central administration or principal place of business within the Union. POSSIBLE COMPROMISE SOLUTION Directive should only benefit publishers established in a Member State and having their registered office, central administration or principal place of business within the Union. [following addition was provisionally agreed at trilogue 03/12/2018] The concept of publisher of press publications should be understood as covering service providers, such as news publishers or news agencies, when they publish press publications within the meaning of this Directive. BM/ EN 103 (33) For the purposes of this Directive, it is necessary to define the concept of press publications so that it only covers journalistic publications, published in any media, including on paper, in the context of an economic activity LIMITE (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 ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 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 which do not constitute communication to the public. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 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 which do not constitute communication to the public. The protection shall also not extend to factual information which is reported in journalistic articles from a press publication and will therefore not prevent anyone from reporting such factual information. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 104 which constitutes a provision of services under Union law. The press publications to be covered would include, for instance, daily newspapers, weekly or monthly magazines of general or special interest, including subscription based magazines, and news websites. Press publications contain mostly literary works but increasingly include other types of works and subject-matter, notably photographs and videos. Periodical publications published for scientific or academic purposes, such as scientific journals, should not be covered by the protection granted to press publications under this Directive. Neither should this protection apply to websites, such as blogs, that provide information as part of an activity which is not carried out under the initiative, editorial responsibility and control of service provider, such LIMITE in any media, for the purpose of informing or entertaining.in any media, including on paper, in the context of an economic activity which constitutes a provision of services under Union law. The press publications to be covered are those whose purpose is to inform the general public and which are periodically or regularly updated. Such publications would include, for instance, daily newspapers, weekly or monthly magazines of general or special interest and news websites. Press publications contain mostly literary works but increasingly include other types of works and subject-matter, notably photographs and videos. Periodical publications wich are published for scientific or academic purposes, such as scientific journals, should not be covered by the protection granted ECOMP 3.B. Row 71. COMMISSION PROPOSAL COM(2016)593 (34) 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. They 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. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (34) 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. They Member States should also be able to subject those rights 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. COUNCIL TEXT 9134/18 to press publications under this Directive. This protection does not extend to acts of hyperlinking which do not constitute communication to the public. POSSIBLE COMPROMISE SOLUTION as a news publisher. [provisionally agreed at TM on 04/12/2018, confirmed at trilogue 13/12/2018] BM/ EN 105 (34) 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 online uses by information society service providers are concerned. The rights granted to the publishers of press publications should not extend to acts of hyperlinking. They should also not extend to the mere facts reported in the press publications. They should also be subject to the same provisions on exceptions and limitations as those applicable to LIMITE (34) 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 digitalonline uses are concerned.by information society service providers are concerned. They should not extend to acts of hyperlinking when they do not constitute communication to the public. They 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, ECOMP 3.B. Row 72. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 including the exception on quotation for purposes such as criticism or review laid down in Article 5(3)(d) of that Directive. POSSIBLE COMPROMISE SOLUTION 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. BM/ EN 106 (34a) Uses of press publications by information society service providers can consist of the use of entire publications or articles but also of parts of press publications. Such uses of parts of press publications have also gained economic relevance. At the same time, the use of individual words or very short extracts of press publications by information society service providers may not undermine the investments made by publishers of press publications in the production of content. Therefore, it is appropriate to provide that the use of individual words or very short LIMITE (34a) Uses of press publications by information society service providers can consist of the use of entire publications or articles but also of parts of press publications. Such uses of parts of press publications have also gained economic relevance. At the same time, where such parts are insubstantial, the use thereof by information society service providers may not undermine the investments made by publishers of press publications in the production of content. Furthermore, insubstantial parts of press publications are not usually the expression of the intellectual creation of their authors, in ECOMP 3.B. Row 73. COMMISSION PROPOSAL COM(2016)593 (35) The protection granted to publishers of press publications under this Directive should not affect the rights of the authors and other rightholders in the works 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 accordance with the case law of the Court of Justice of the European Union. Therefore, it is appropriate to provide that the use of insubstantial parts of press publications should not fall within the scope of the rights provided for in this Directive. To determine the insubstantial nature of parts of press publications for the purposes of this Directive, Member States may take into account whether these parts are the expression of the intellectual creation of their authors or whether these parts are limited to individual words or very short excerpts, without independent economic significance, or both criteria. POSSIBLE COMPROMISE SOLUTION extracts of press publications should not fall within the scope of the rights provided for in this Directive. BM/ EN 107 (35) The protection granted to publishers of press publications under this Directive should not affect the rights of the authors and other rightholders in the works LIMITE (35) The protection granted to (35) The protection granted to publishers of press publications publishers of press publications under this Directive should not under this Directive should not affect the rights of the authors and affect the rights of the authors other rightholders in the works and other rightholders in the ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 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 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, on the one side, and authors and other rightholders, on the other side. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 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 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, on the one side, and authors and other rightholders, on the other side. Notwithstanding the fact that authors of the works incorporated in a press publication receive an appropriate reward for the use of their works on the basis of the terms for licensing of their work to the press publisher, authors whose work is incorporated in a COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION LIMITE BM/ EN 108 works and other subject-matter and other subject-matter incorporated therein, including as incorporated therein, including as regards the extent to which regards the extent to which authors and other rightholders can authors and other rightholders can exploit their works or other exploit their works or other subject-matter independently subject-matter independently from the press publication in from the press publication in which they are incorporated. which they are incorporated. Therefore, publishers of press Therefore, publishers of press publications should not be able to publications should not be able to invoke the protection granted to invoke the protection granted to them against authors and other them against authors and other rightholders. or against other rightholders or against other authorised users of the same authorised users of the same works and other subjectworks and other subject-matter. matter. This is without prejudice This is without prejudice to to contractual arrangements contractual arrangements concluded between the publishers concluded between the publishers of press publications, on the one of press publications, on the one side, and authors and other side, and authors and other rightholders, on the other side. rightholders, on the other side. Authors whose works are incorporated in a press publication should be entitled to an appropriate share of the revenues press publishers receive for the uses of their press ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 press publication should be entitled to an appropriate share of the new additional revenues press publishers receive for certain types of secondary use of their press publications by information society service providers in respect of the rights provided for in Article 11(1) of this Directive. The amount of the compensation attributed to the authors should take into account the specific industry licensing standards regarding works incorporated in a press publication which are accepted as appropriate in the respective Member State; and the compensation attributed to authors should not affect the licensing terms agreed between the author and the press publisher for the use of the author’s article by the press publisher. ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 109 COUNCIL TEXT 9134/18 publications by information society service providers. BM/ EN [to be discussed further at trilogue] LIMITE Row 74. COMMISSION PROPOSAL COM(2016)593 (36) Publishers, including those of press publications, books or scientific publications, often operate on the basis of the transfer of authors' rights by means of contractual agreements. 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 otherwise 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (36) Publishers, including those of press publications, books or scientific publications, often and music publications, operate on the basis of the transfer of authors' rights by means of contractual agreements with authors. In this context, publishers make an investment and acquire rights, in some fields including rights to claim a share of compensation within joint collective management organisations of authors and publishers, with a view to the exploitation of the works contained in their publications and may in some instances be therefore also find themselves being deprived of revenues where such works are used under exceptions or limitations such as the ones for private copying and reprography. In a large number of Member States compensation for uses under those exceptions is COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 110 (36) Publishers, including those of press publications, books or scientific publications and music 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, including the corresponding existing national schemes for reprography in the Member States, or under public lending schemes. i) In several Member States compensation for uses under those exceptions is shared between authors and publishers. In order to take account of this situation and to improve legal LIMITE (36) Publishers, including those of press publications, books or 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., including the corresponding existing national schemes for reprography in the Member States, or under public lending schemes. In a number of Member States the compensation or remuneration for such uses under those exceptions is shared between authors and publishers. In order to take account of this ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 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 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. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 shared between authors and publishers. In order to take account of this situation and to 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 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 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. provide an equivalent compensationsharing system if such a system was in operation in that Member State before 12 November 2015. The share between authors and publishers of such compensation could be set in the internal COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 111 certainty for all concerned parties, this Directive allows Member States that have in place existing schemes for the sharing of compensation between authors and publishers to maintain them. ii) iii) This is particularly important to those Member States that had such compensation-sharing mechanisms before 12 November 2015 although in other Member States, compensation is not shared and solely due to authors in accordance with national cultural policies. While this Directive should apply in a nondiscriminatory way to all Member States, it should respect the traditions in this area and not oblige those Member States that do not currently have such compensation-sharing schemes to introduce them. It should not LIMITE situation and improve legal certainty for all concerned parties, Member States should be allowed but not obliged to determine that, when an author has transferred or licensed his rights to a publisher or a collective management organisation that jointly represents authors and publishers 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 are entitled to claim a share of such compensation, whereas. The same possibility should exist for remuneration for public lending, while Member States should remain free to decide not to provide publishers with such remuneration. Member States should remain free to determine the burden on the publisher to substantiate his claim should not exceed what is required underfor ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 distribution rules of the collective management organisation acting jointly on behalf of authors and publishers, or set by Members States in law or regulation, in accordance with the equivalent system that was in operation in that Member State before 12 November 2015. This provision is without prejudice to the arrangements in the Member States concerning public lending rights, the management of rights not based on exceptions or limitations to copyright, such as extended collective licensing schemes, or concerning remuneration rights on the basis of national law. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION affect existing and future arrangements in Member States regarding remuneration in the context of public lending. It should also leave untouched national arrangements related to the management of rights and to remuneration rights, provided that they comply with Union law. All Member States should be allowed but not obliged to determine that, when an author has transferred or licensed his rights to a publisher or otherwise contributes with his works to a publication and there are systems in place to compensate for the harm caused to them by an exception or limitation, including through collective management organisations that jointly represent authors and publishers, publishers are entitled to a share of such compensation. BM/ EN 112 Member States should remain free to determine the burden on LIMITE the systemcompensation or remuneration and to lay down the conditions as to the sharing of this compensation or remuneration between authors and publishers in placeaccordance with their national systems. ECOMP 3.B. Row 75. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (36 a) Cultural and creative industries (CCIs) play a key role in reindustrialising Europe, are a driver for growth and are in a strategic position to trigger innovative spill-overs in other industrial sectors. Furthermore CCIs are a driving force for innovation and development of ICT in Europe. Cultural and creative industries in Europe provide more than 12 million full-time jobs, which amounts to ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 113 COUNCIL TEXT 9134/18 the publisher to substantiate his claim for the compensation or remuneration and to lay down the conditions as to the sharing of this compensation or remuneration between authors and publishers in accordance with their national systems. [provisionally agreed at TM 04/12/2018 and confirmed at trilogue 13/12/2018] BM/ EN [To be checked the background – most likely to be deleted] LIMITE Row 76. COMMISSION PROPOSAL COM(2016)593 (37) Over the last years, the functioning of the online content marketplace has gained in complexity. Online services providing access to copyright protected content uploaded by their users without the involvement of right holders have flourished and have become main 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. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 7,5 % of the Union's work force, creating approximately EUR 509 billion in value added to GDP (5,3 % of the EU's total GVA). The protection of copyright and related rights are at the core of the CCI's revenue. (37) Over the last years, the functioning of the online content marketplace market has gained in complexity. Online services providing access to copyright protected content uploaded by their users without the involvement of right holders have flourished and have become main sources of access to copyright protected content online. Online services 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. However, although they allow for diversity and ease of access to content, COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 114 (37) Over the last years, the functioning of the online content market has gained in complexity. Online content sharing services providing access to a large amount of copyright protected content uploaded by their users have become main sources of access to content online. Online services 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. However, although they allow for diversity and ease of access to content, LIMITE (37) Over the last years, the functioning of the online content marketplace has gained in complexity. Online content sharing services providing access to a large amount of copyright protected content uploaded by their users without the involvement of right holders have flourisheddeveloped and have become main sources of access to content online. ThisLegal uncertainty exists as to whether such services engage in copyright relevant acts and need to obtain authorisations from rightholders for the content uploaded by their users who do not hold the relevant ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION LIMITE BM/ EN 115 they also generate challenges rights in the uploaded content, they also generate challenges when copyright protected content without prejudice to the when copyright protected content is uploaded without prior application of exceptions and is uploaded without prior authorisation from rightholders. limitations provided for in authorisation from rightholders. This affects rightholders' Union Law. This situation possibilities to determine affects rightholders' possibilities Legal uncertainty exists as to whether, and under which to determine whether, and under whether such services engage in conditions, their work and other which conditions, their work and copyright relevant acts and need subject-matter are used as well as other subject-matter are content to obtain authorisations from their possibilities to get an is used as well as their appropriate remuneration for it, possibilities to get an appropriate rightholders for the content remuneration for it. It is since some user uploaded uploaded by their users who do content services do not enter into therefore important to foster not hold the relevant rights in the licensing agreements on the the development of the licensing uploaded content, without basis that they claim to be market between rightholders prejudice to the application of covered by the “safe-harbour” and online content sharing exceptions and limitations exemption set out in Directive service providers. These 2000/31/EC. licensing agreements should be provided for in Union Law. This uncertainty affects rightholders' fair and keep a reasonable balance for both parties. possibilities to determine Rightholders should receive an whether, and under which appropriate reward for the use conditions, their works and other of their works or other subject subject-matter are used as well as matter. their possibilities to get an appropriate remuneration for it. ECOMP 3.B. Row 77. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (37a) Certain information society services, as part of their normal use, are designed to give access to the public to copyright protected content or other subject-matter uploaded by their users. The definition of an online content sharing service provider under this Directive shall cover information society service providers one of the main purposes of which is to store and give access to the public or to COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION It is therefore important to foster the development of the licensing market between rightholders and online content sharing service providers. These licensing agreements should be fair and keep a reasonable balance for both parties. Rightholders should receive an appropriate reward for the use of their works or other subject matter. [if recital (38a) as proposed by the Commission during the trilogue on 13/12/2018 (see row 82) is retained, the following sentence from recital (37a) EP would have to be deleted: BM/ EN 116 "The definition of an online content sharing service provider under this Directive shall cover LIMITE (37a) The definition of an online content sharing service provider under this Directive targets only online services which play an important role on the online content market by competing with other online content services, such as online audio and video streaming services, for the same audiences. The services covered by this intervention are those the main or one of the main ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 stream significant amounts of copyright protected content uploaded / made available by its users, and that optimise content, and promote for profit making purposes, including amongst others displaying, tagging, curating, sequencing, the uploaded works or other subjectmatter, irrespective of the means used therefor, and therefore act in an active way. As a consequence, they cannot benefit from the liability exemption provided for in Article 14 of Directive 2000/31/EC. The definition of online content sharing service providers under this Directive does not cover microenterprises and small sized enterprises within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC and service providers that act in a noncommercial purpose capacity such as online encyclopaedia, COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION information society service providers (…) and therefore act in an active way. As a consequence, they cannot benefit from the liability exemption provided for in Article 14 of Directive 2000/31/EC." BM/ EN 117 (37a) Certain information society services, as part of their normal use, are designed to give access to the public to copyright protected content or other subject-matter uploaded by their user. The definition of an online content sharing service under this Directive should target only online services which play an important role on the online content market by competing with other online content services, such as online audio and video LIMITE purposes of which is to provide access to a large amount of copyright-protected content uploaded by their users with the purpose of obtaining profit therefrom, either directly or indirectly, by organising it and promoting it in order to attract more audiences. Organising and promoting content involves for example indexing the content, presenting it in a certain manner and categorising it, as well as using targeted promotion on it. The definition does not include services whose main purpose is not to provide access to copyright protected content with the purpose of obtaining profit from this activity. These include, for instance, electronic communication services within the meaning of Regulation 2015/2120/EU, including internet access providers, as well as providers of cloud ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 and providers of online services where the content is uploaded with the authorisation of all right holders concerned, such as educational or scientific repositories. Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this Directive. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 118 streaming services, for the same audiences. The services covered by this Directive are those services, the main or one of the main purposes of which is to store and enable users to upload and share a large amount of copyright protected content with the purpose of obtaining profit therefrom, either directly or indirectly, by organising it and promoting it in order to attract a larger audience, including by categorising it and using targeted promotion within it. The definition does not include services which have another main purpose than enabling users to upload and share a large amount of copyright protected content with the purpose of obtaining profit from this activity. These include, for instance, electronic LIMITE services which allow users, to upload content for their own use, such as cyberlockers, or online marketplaces whose main activity is online retail and not giving access to copyright protected content. Nor does this definition cover websites which store and provide access to content for non-for-profit purposes, such as online encyclopaedias, scientific or educational repositories or open source software developing platforms which do not store and give access to content for profit making purposes. In order to ensure the high level of copyright protection and to avoid the possible application of the liability exemption mechanism provided for in this Directive, this Directive should not apply to services the main purpose of which is to engage in or to ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 119 communication services within the meaning of Directive 2018/1972 establishing the European Electronic Communications Code, as well as providers of business to-business cloud services and cloud services, which allow users to upload content for their own use, such as cyberlockers, or online marketplaces whose main activity is online retail and not giving access to copyright protected content. Providers of services such as open source software development and sharing platforms, not for profit scientific or educational repositories as well as not-forprofit online encyclopedias are also excluded from this definition. LIMITE facilitate copyright piracy. ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 120 COUNCIL TEXT 9134/18 [IF SMES ARE EXCLUDED Microenterprises and small-sized enterprises within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC should also be excluded from this definition since they are not considered as significantly affecting the online content market and do not compete with major licence-based online services. These enterprises remain subject to the possible application of the existing rules on copyright, in particular to Articles 3(1) and 3(2) of Directive 2019/29/EC as well as to of the provisions of Diretive 2000/31/EC]. BM/ EN Finally, in order to ensure a high LIMITE Row 78. 79. COMMISSION PROPOSAL COM(2016)593 (38) Where information society service providers store and provide access to the public to copyright protected works or 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (38) Where information society Online content sharing service providers store and provide access to the public to COUNCIL TEXT 9134/18 (37b) The assessment of whether an online content sharing service provider stores and gives access to a large amount of copyright-protected content needs to be made on a case-by-case basis and take account of a combination of elements, such as the audience of the service and the number of files of copyright-protected content uploaded by the users of the services. POSSIBLE COMPROMISE SOLUTION level of copyright protection, the liability exemption mechanism provided for in Article 13 should not apply to service providers the main purpose of which is to engage in or to facilitate copyright piracy. (37b) The assessment of whether an online content sharing service provider stores and gives access to a large amount of copyrightprotected content needs to be made on a case-by-case basis and take account of a combination of elements, such as the audience of the service and the number of files of copyright-protected content uploaded by the users of the services. BM/ EN 121 (38) This Directive clarifies that online content sharing service providers engage in an act of communication to the public or LIMITE (38) This Directive clarifies under which conditions the Where information society online content sharing ECOMP 3.B. Row 13 COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 other subject-matter uploaded by copyright protected works or their users, thereby going beyond other subject-matter uploaded by the mere provision of physical their users, thereby going beyond facilities and performing an act of the mere provision of physical communication to the public, they facilities and performing perform are obliged to conclude licensing an act of communication to the agreements with rightholders, public, they are obliged to and unless they are eligible for the therefore are responsible for liability exemption provided in their content and should Article 14 of Directive therefore conclude fair and 2000/31/EC of the European appropriate licensing agreements Parliament and of the Council13. with rightholders, unless they are eligible for. Where licensing agreements are concluded, they should also cover, to the same extent and scope, the liability exemption provided in of users when they are acting in a noncommercial capacity. In accordance with Article 14 of Directive 2000/31/EC of the European Parliament and of the Council 11(2a) the responsibility of online content sharing COUNCIL TEXT 9134/18 service providers store and provide access to copyright protected works or other subjectmatter uploaded by their users, thereby going beyond the mere provision of physical facilities and performing are engaging in an act of communication to the public or making available to the public within the meaning of Article 3(1) and (2) of Directive 2001/29/EC 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 Council. It does not change the concept of communication to the public or of making available to the public under Union law nor does it affect the possible ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION making available to the public when they give the public access to copyright protected works or other protected subject matter uploaded by their users. Consequently, the online content sharing service providers should obtain an authorisation, including via a licencing agreement, from the relevant rightholders. This does not affect the concept of communication to the public or of making available to the public elsewhere under Union law nor does it affect the possible application of Article 3(1) and (2) of Directive 2001/29/EC to other service providers using copyrightprotected content [, including to the micro and small enterprises or other service providers which are excluded from the scope of this Directive]. LIMITE BM/ EN 122 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). 5138/19 ANNEX Row 80. COMMISSION PROPOSAL COM(2016)593 In respect of 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-matter or promoting them, irrespective of the nature of the means used therefor. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 application of Article 3(1) and (2) of Directive 2001/29/EC to other services using copyrightprotected content. POSSIBLE COMPROMISE SOLUTION [Uses being covered by licences is covered in recital 38(d)] 123 providers pursuant to Article 13 does not extend to acts of hyperlinking in respect of press publications. The dialogue between stakeholders is essential in the digital world. They should define best practices to ensure the functioning of licensing agreements and cooperation between online content sharing service providers and rightholders. Those best practices should take into account the extent of the copyright infringing content on the service. BM/ EN Deleted LIMITE Deleted, partly moved to recital (37a) Council's text – see row 77 ECOMP 3.B. Row 81. 82. COMMISSION PROPOSAL COM(2016)593 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/EC. 5138/19 ANNEX EP TEXT A8-0245/2018 P8_TA-PROV(2018)0337 Deleted COUNCIL TEXT 9134/18 Deleted, partly moved to recital (38c) Council's text – see row 84 (38a) [Renumbered - in ST 9134/18 recital 38(b)] POSSIBLE COMPROMISE SOLUTION [See comment in row 77, and comment on Article 13(3) in row 237A] BM/ EN 124 [Commission's text proposed at the trilogue 13/12/2018, to be LIMITE When online content sharing service providers communicate to the public, they should not ECOMP 3.B. Row 83. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION benefit from the limited liability further discussed] provided for in Article 14 of Directive 2000/31/EC for the purposes of copyright relevant acts. This should not affect the possibility for the same online content sharing providers to benefit from such exemption of liability for other purposes than copyright when they are providing their services and host content at the request of their users in accordance with Article 14 of Directive 2000/31/EC. "When online content sharing service providers are liable for acts of communication to the public or making available to the public under the conditions established under this Directive, Article 14(1) of Directive 2000/31/EC should not apply to the liability arising from Article 13 of this Directive. This should not affect the application of Article 14(1) of Directive 2000/31/EC to these service providers for purposes falling outside the scope of this Directive." (38b) TO BE ADAPTED TO THE FINAL TEXT of Article 13 125 (38b) [Renumbered - in ST 9134/18 recital (38c)] BM/ EN Taking into account the fact that LIMITE Taking into account the fact that online content sharing service providers give access to ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION online content sharing service providers give access to content which is not uploaded by them but by their users, it is appropriate to provide for a specific liability mechanism for the purposes of this Directive for cases where no authorisation has been granted. This should be without prejudice to remedies under national law for cases other than liability for copyright infringements and to the possibility for national courts or administrative authorities of issuing injunctions in compliance with Union law. BM/ EN 126 Where no authorisation has been granted to the services providers, they should make their best efforts in cooperation with rightholders and in accordance with high industry standards of professional diligence to avoid the availability on their services of unauthorised works and other subject matter, as identified by LIMITE content which is not uploaded by them but by their users, it is appropriate to provide that, for cases where no authorisation has been obtained by the services and, for the purpose of this Directive, they should not be liable for unauthorised acts in specific, well-defined circumstances, when they demonstrate that they have acted in a diligent manner with the objective to prevent such unauthorised acts, without prejudice to remedies under national law for cases other than liability for copyright infringements and to the possibility for national courts or administrative authorities of issuing injunctions. In particular, they should not be liable if some unauthorised content is available on their services despite their best efforts to prevent its availability by applying effective and ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION the relevant rightholders. For that purpose rightholders should provide the service providers with necessary and relevant data taking into account, among other factors, the size of rightholders and the type of their works and other subject matter. The steps taken by the online content sharing service providers in cooperation with right holders should not lead to the prevention of the availability of non-infringing content, including the use of works or other protected subject matter covered by a licencing agreement, exception or limitation to copyright. Thereby it should not affect users who are using the online content sharing providers’ services in order to lawfully upload and access information on these services. BM/ EN 127 The obligations established in Article 13 should also not lead to Member States imposing a LIMITE proportionate measures based on the information provided by rightholders. In addition, for the online content sharing service providers not to be liable, they should also in any case, upon notification by rightholders of specific unauthorised works or other subject-matter, act expeditiously to remove or disable access to these and make their best efforts to prevent their future availability. ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 128 COUNCIL TEXT 9134/18 general monitoring obligation. BM/ EN When assessing whether an online content sharing service provider has made its best efforts according to the high industry standards of professional diligence, account should be taken of the principle of proportionality. For the purposes of this assessment, a number of elements should be considered, such as the size of the service, the state of the art of existing means for avoiding the availability of different types of content and their cost for the services. Different means to avoid the availability of unauthorised copyright protected content may be appropriate and proportionate per type of content and it is therefore not excluded that in some cases unauthorised content may only be avoided upon notification of rightholders. LIMITE Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 129 COUNCIL TEXT 9134/18 Any steps taken by the service providers should be effective with regard to the objectives sought but should not go beyond what is necessary to achieve the objective of avoiding and discontinuing the availability of unauthorised works and other subject matter. BM/ EN [ IF SMEs are not excluded: It is not excluded that in some cases unauthorised content may only be avoided upon notification of rightholders. In particular, small and micro enterprises as defined in Title I of the Annex to Commission Recommendation 2003/361/EC, should be expected to be subject to less burdensome obligations than larger service providers. Therefore, in specific cases it may not be proportionate to expect small and micro LIMITE Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 130 COUNCIL TEXT 9134/18 enterprises to apply preventive measures and in such cases these enterprises should only be expected to expeditiously remove specific unauthorised works and other subject matter upon notification by rightholders.] BM/ EN If unauthorised works and other subject matter become available despite the best efforts made in cooperation with rightholders as required by this Directive, the online content sharing service providers should be liable in relation to the specific works and other subject matter for which they have received the relevant and necessary information from rightholders unless they demonstrate that they have made their best efforts pursuant to high industry standards of professional diligence. In addition, where specific unauthorised works or LIMITE Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 131 COUNCIL TEXT 9134/18 other subject matter have become available on the services, including despite the best efforts made, the online content sharing service providers should be liable for unauthorised acts of communication to the public of works and other subject matter, when upon receiving a sufficiently substantiated notice, they fail to act expeditiously to remove from their websites or disable access to the notified works and subject matter and if they fail to demonstrate that they have made their best efforts to prevent their future uploads. BM/ EN When rightholders do not provide the service providers with the necessary and relevant data on their specific works and other subject matter or when no notification concerning the removal or disabling access to specific unauthorised works or other subject matter has been LIMITE Row 84. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 (38c) [Renumbered - in ST 9134/18 recital (38ca)] POSSIBLE COMPROMISE SOLUTION provided by rightholders and, as a result, online content sharing service providers cannot make their best efforts to avoid on their services the availability of unauthorised content in accordance with the high standard of professional diligence, the service providers should not be liable for unauthorised acts of communication to the public or of making available to the public of these unidentified works and other subject matter. BM/ EN 132 38(c) The online content sharing service providers should be transparent towards rightholders with regard to the steps taken in the context of the cooperation. As different actions may be undertaken by the online content sharing service providers, they should provide rightholders, at their request, with adequate LIMITE Appropriate collaboration carried out in good faith between online content sharing service providers and rightholders is essential for the effective application of the measures by the online content ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 133 information on the type of actions undertaken and the way they are implemented. Such information should be sufficiently specific to provide enough transparency to rightholders, without prejudice to the business secrets of online content sharing service providers. Service providers should however not be required to provide rightholders with detailed and individualised information for each work and other subject matter identified. This is without prejudice to contractual arrangements, which may contain more specific provisions on the information to be provided where agreements are concluded between service providers and rightholders. LIMITE sharing service providers. These service providers should be transparent towards rightholders with regard to the deployed measures. As different measures may be used by the online content sharing service providers, they should provide rightholders with appropriate information on the type of measures used and the way they operate, including for example information on the success rate of the measures. Such information should be sufficiently specific to provide enough transparency for rightholders and allow cooperation to ensure effective functioning of the measures, without prejudice to the business secrets of service providers. Service providers should however not be required to provide rightholders with detailed and individualised information for each work and ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 BM/ EN 134 POSSIBLE COMPROMISE SOLUTION LIMITE other subject matter identified. This is without prejudice to contractual arrangements, which may contain more specific provisions on the information to be provided where agreements are concluded between service providers and rightholders. On the other hand, rightholders should provide the service providers with necessary and relevant data for the application of the measures to their specific unauthorised works or other subject matter taking also into account the size of rightholders and the type of their works and other subject matter. As long as no data for the application of the measures or no notification concerning removal or disabling access to specific unauthorised works or other subject matter has been provided by rightholders and, as a result, online content ECOMP 3.B. Row 85. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 sharing service providers cannot take the measures or expeditious action as set out in this Directive, these service providers should not be liable for unauthorised acts of communication to the public or of making available to the public. POSSIBLE COMPROMISE SOLUTION [Commission's text proposed at (38d) Where online content the trilogue 13/12/2018, to be sharing service providers obtain authorisations, including further discussed] via licensing agreements, for the use on the service of content (38d) Where online content sharing service providers obtain uploaded by the users of the authorisations, including via services, these authorisations should also cover the copyright licensing agreements, for the use on the service of content relevant acts in respect of uploads by the users but only in uploaded by the users of the service, these should also cover cases where the users act in the copyright relevant acts of in their private capacity and for non-commercial purposes, such respect of uploads by the users as sharing their content without when they upload content within the scope of the authorisation any profit making purpose. granted to the service providers, but only in cases LIMITE BM/ EN 135 (38e) The measures taken by ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION where the users act for noncommercial purposes, such as sharing their content without any profit making purpose, or when the revenue generated by their uploads are not significant in relation to the copyright relevant act of the users for which they are covered. Examples of such acts include uploads of content by individual users, such as parodies, remakes, educational videos, or covers of music or videos made for leisure or generating little revenues because they attract small audience. BM/ EN 136 When users have obtained an authorisation to upload and make available works or other subject-matter on an online content sharing service, the act of communication to the public is authorised and therefore the online content sharing service provider should not be obliged LIMITE the online content sharing service providers to prevent the availability of unauthorised works or other subject-matter should be effective but remain proportionate, in particular with regard to the size of the online content sharing service provider. While this Directive is expected to foster the development of effective technologies on the market, the availability of the measures may differ according to the type of content for which the measures are applied. Having regard to the technological developments in line with industry best practices, those measures should consequently ensure a level of efficiency appropriate to the amount and the type of works or other subject matter uploaded by the users of the services. For the purposes of assessing the proportionality of measures to ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 137 to obtain a license for this authorised act of communication to the public. LIMITE be taken by the online content sharing service providers, the state of the art of existing technologies for the different types of content as well as the size of the services should be taken into account notably whether they are small and micro enterprises. Different measures may be appropriate and proportionate per type of content and it is therefore not excluded that in some cases unauthorised content may only be avoided upon notification of rightholders. The measures should be proportionate in order to avoid imposing disproportionately complicated or costly obligations on certain online content sharing service providers, taking into account notably their small size. In particular, small and micro enterprises as defined in Title I of the Annex to Commission Recommendation 2003/361/EC, ECOMP 3.B. Row 86. COMMISSION PROPOSAL COM(2016)593 (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 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (39) Collaboration between information society Member States should provide that where right holders do not wish to conclude licensing agreements, online content sharing service COUNCIL TEXT 9134/18 should be expected to be subject to less burdensome obligations than larger service providers. Therefore, taking into account the state of the art and the availability of technologies and their costs, in specific cases it may not be proportionate to expect small and micro enterprises to apply preventive measures and that therefore in such cases these enterprises should only be expected to expeditiously remove specific unauthorised works and other subject matter upon notification by rightholders. BM/ EN 138 POSSIBLE COMPROMISE SOLUTION LIMITE (39) Moved up to recital (38c)[which was recital (38ca) in ST 9134/18] ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 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. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 providers storing and providing access to the public to large amounts of copyright and right holders should cooperate in good faith in order to ensure that unauthorised protected works or other subject matter uploaded by, are not available on 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. Cooperation between online 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 ECOMP 3.B. 139 POSSIBLE COMPROMISE SOLUTION BM/ EN COUNCIL TEXT 9134/18 LIMITE Row 87. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 rightholders' content. Those technologies should also allow rightholders to get information from the information society service providers on the use of their content and right holders should not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an agreement exception or limitation to copyright. (39a) Members States should ensure that online content sharing service providers referred to in paragraph 1 put in place effective and expeditious complaints and redress mechanisms that are available to users in case the cooperation referred to in paragraph 2a leads to unjustified removals of their content. Any complaint filed under such mechanisms should COUNCIL TEXT 9134/18 (39a) [Renumbered - in ST 9134/18 recital (39b)] POSSIBLE COMPROMISE SOLUTION (39a) The steps taken by the online content sharing service providers should be without prejudice to the application of exceptions and limitations to copyright, including in particular those which guarantee the freedom of expression of users. BM/ EN 140 Users acting for non-commercial purposes or users whose activities do not generate significant LIMITE The measures taken by the online content sharing service providers should be without prejudice to the application of exceptions and limitations to copyright, including in particular those which guarantee the freedom of expression of users. For that ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 be processed without undue delay. Right holders should reasonably justify their decisions to avoid arbitrary dismissal of complaints. Moreover, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation, the cooperation should not lead to any identification of individual users nor the processing of their personal data. Member States should 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. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION revenues should not be prevented from uploading and making available content that they have produced and that contains existing works or other protected subject matter for specific purposes such as of illustration or parody when these uses do not create significant harm to rightholders. BM/ EN 141 The online content sharing service providers should also put in place effective and expeditious complaint and redress mechanisms allowing users to complain on the steps taken with regard to their uploads, in particular when they could benefit from an exception or limitation to copyright in relation to an upload that is removed or to which access is disabled. Any complaint filed under such mechanisms should be processed without undue delay and be subject to a decision by a human. When LIMITE purpose the service providers should put in place mechanisms allowing users to complain about the blocking or removal of uploaded content that could benefit from an exception or limitation to copyright. Replies to the users’ complaints should be provided in a timely manner. To make these mechanisms function, cooperation from rightholders is needed, in particular with regard to the assessment of the complaints submitted and justifications for the removal of users’ content. Member States should remain free to put in place independent authorities for assessing the complaints submitted by users and making decisions on their validity. The redress mechanism should be without prejudice to the right of the parties to take action before a court. ECOMP 3.B. Row 14 15 COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 ECOMP 3.B. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION rightholders request the services to take action against the uploads by users, such as disabling access to or removing content uploaded, the rightholders should duly justify their requests. Moreover, in accordance with Directive 2002/58/EC14 and Regulation (EU)2016/67915, the cooperation should not lead to any identification of individual users nor the processing of their personal data. Member States should also ensure that users have access to out-of-court redress mechanisms for the settlement of disputes. Such mechanisms should allow disputes to be settled impartially. Users should also have access to a court or another relevant judicial authority to assert the use of an exception LIMITE BM/ EN 142 ePrivacy-Directive: Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ L 201, 31.7.2002, p. 37–47. Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, p. 1–88. 5138/19 ANNEX Row 88. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION or limitation to copyright rules. BM/ EN 143 (39b) As soon as possible after the entry into force of this Directive, the Commission, in collaboration with Member States, should organise dialogues between stakeholders to arrive to a uniform application of the obligation of cooperation and to define best practices with regard to the appropriate industry standards of professional diligence. For this purpose the Commission should consult relevant stakeholders, including user organisations and technology providers, and take into account the developments on the market. User organisations should also have access to information on actions carried out by online content sharing service providers to manage content online. LIMITE (39b) [Renumbered - in ST (39b) As soon as possible after 9134/18 recital (39c)] the entry into force of this Directive, the Commission and In order to foster best practices the Member States should with regard to the measures to organise dialogues between stakeholders to harmonise and to be taken by online content sharing service providers to define best practices. They avoid liability for unauthorised should issue guidance to ensure copyright acts, stakeholder the functioning of licensing dialogues should be encouraged agreements and on cooperation by the Member States and the between online content sharing Commission. In order to give service providers and right holders for the use of their works more clarity to the parties some guidance should also be or other subject matter within provided by the Commission on the meaning of this Directive. the implementation of the When defining best practices, measures including as to which special account should be taken of fundamental rights, the use of measures could be considered to be proportionate for exceptions and limitations. different types of content. For Special focus should also be the purposes of the guidance given to ensuring that the the Commission should consult burden on SMEs remains relevant stakeholders, including appropriate and that automated user organisations and blocking of content is avoided. technology providers, and take ECOMP 3.B. Row COMMISSION PROPOSAL EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 89. (39c) Member States should ensure that an intermediate mechanism exists enabling service providers and rightholders to find an amicable solution to any dispute arising from the terms of their cooperation agreements. To that end, Member States should appoint an impartial body with all the relevant competence and experience necessary to assist the parties in the resolution of their dispute. COM(2016)593 90. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 144 [New, introductory recital to the whole chapter to clarify that the provision applies to "exploitation contracts". The proposed text is based on already green recitals 40 and 40a – if this is kept here, the repetitions can be deleted from recitals 40 and 40a.] LIMITE into account the developments on the market. ECOMP 3.B. (39d) As a principle, rightholders should always receive fair and appropriate remuneration. Authors and performers who have concluded contracts with intermediaries, such as labels and producers, should receive fair and appropriate remuneration from 5138/19 ANNEX Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 them, either through individual agreements and/ or collective bargaining agreements, collective management agreements or rules having a similar effect, for example joint remuneration rules. This remuneration should be mentioned explicitly in the contracts according to each mode of exploitation, including online exploitation. Members States should look into the specificities of each sector and should be allowed to provide that remuneration is deemed fair and appropriate if it is determined in accordance with the collective bargaining or joint remuneration agreement. ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 145 COUNCIL TEXT 9134/18 (39x) Authors and performers tend to be in a weaker contractual position when they grant a licence or transfer their rights, including through their own companies, for the purposes of exploitation in return for remuneration, and these natural persons need certain the protection provided for by this Directive to be able to fully benefit from their rights which are harmonised under Union law. This need does not arise when the contractual counterpart acts as end user and does not exploit the work or performance itself, which could among others be the case in some employment contracts. RED BM/ EN [Commission's text proposed at the trilogue 13/12/2018, to be further discussed] LIMITE Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 146 COUNCIL TEXT 9134/18 (39Y) The remuneration of authors and performers should be appropriate and proportionate to the actual or potential economic value of the licensed or transferred rights, taking into account the author’s or performer’s contribution to the overall work or other subjectmatter, the actual exploitation of the work and all other circumstances of the case, including such as market practices or the actual exploitation of the work. BM/ EN A lump sum payment can constitute proportionate remuneration. Member States should have the possibility, taking into account the specificities of each sector, to define specific cases for the application of lump sums, such as cases when proportionate LIMITE Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 147 COUNCIL TEXT 9134/18 remuneration can be reasonably determined already at the conclusion of the contract determining the basis of a proportional remuneration is impossible in practice, or when the contribution of the author or performer is not significant having regard to the overall work or performancetaking into account the potential economic value of the rights. BM/ EN Members States should be free to implement the principle of appropriate and proportionate remuneration through different mechanisms, including collective bargaining and statutory mechanisms, provided that such mechanisms are in conformity with Union law. LIMITE Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 148 COUNCIL TEXT 9134/18 [free licences: not mentioned in this recital but instead it was agreed to consider a general/horizontal recital clarifying that free licences/ creative commons are not affected] [wording for such horizontal recital on free licences (suggested to be moved after recital 43a)] (43b) Nothing in this Directive should be interpreted as preventing holders of exclusive rights under Union copyright law from authorising the use of their works or other subject-matter for free, including through free licences, when they consider it appropriate. BM/ EN [To be further discussed at LIMITE Row 91. COMMISSION PROPOSAL COM(2016)593 (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 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (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 comprehensive and relevant information by their contractual counterparts or their successors in COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION political level] BM/ EN 149 (40) Certain rightholders such as authors 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 natural persons grant a licence or a transfer of rights for the purposes of exploitation in return for remuneration. This need does not arise when the contractual counterpart acts as end of the work and does not exploit the work or performance itself, which could among others be the case in some employment contracts. Additionally, this need does not arise when the exploitation has ceased, or when the author or performer has granted licence to the general public without LIMITE (40) Certain rightholders such as authors 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 natural persons grant a licence or a transfer of rights for the purposes of exploitation in return for remuneration. This need does not arise when the contractual counterpart acts as end user of the work and does not exploit the work or performance itself, which could among others be the case in some employment contracts. Additionally, this need does not arise when the exploitation has ceased, or when the author or performer has granted licence to the general public without ECOMP 3.B. Row 92. COMMISSION PROPOSAL COM(2016)593 transparency and balance in the system that governs the remuneration of authors and performers. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 title is important for the transparency and balance in the system that governs the remuneration of authors and performers. The information that authors and performers are entitled to expect should be proportionate and cover all modes of exploitation, direct and indirect revenue generated, including revenues from merchandising, and the remuneration due. The information on the exploitation should also include information about the identity of any sublicensee or sub-transferee. The transparency obligation should nevertheless apply only where copyright relevant rights are concerned. [See Council’s recital (40a) -row 92] COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION remuneration. 9134/18 remuneration. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] 150 [Last two phrases of recital (40) of the COM proposal were moved to new recital (40a) of Council's text - see following row 92] BM/ EN (40a) As authors and performers tend to be in a weaker contractual LIMITE (40a) As authors and performers tend to be in a weaker contractual ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 151 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 and accurate 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 information should be: timely up-to-date to allow access to recent data; adequate to include information relevant to the exploitation of the work or performance in a manner that is comprehensible to the author or performer; and comprehensive to cover all sources of revenues relevant to the case, including, where LIMITE 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 information should be: timely to allow access to recent data; adequate to include information relevant to the exploitation of the work or performance in a manner that is comprehensible to the author or performer; and sufficient to assess the economic value of the rights in question. As long as exploitation is ongoing, contractual ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION LIMITE BM/ EN 152 counterparts of authors and applicable, merchandising performers should provide revenues sufficient to assess the information available to them economic value of the rights in on all modes of exploitation and question. As long as on all relevant revenues with a exploitation is ongoing, regularity which is appropriate contractual counterparts of in the relevant sector, but at authors and performers should least annually. The processing provide information available of personal data, such as to them on all modes of contact details and information exploitation and on all relevant on remuneration, that are revenues worldwide with a necessary to keep authors and regularity which is appropriate performers informed on the in the relevant sector, but at exploitation of their works and least annually. The information performances should be carried should be provided in a manner out by those who need to that is comprehensible to the comply with the transparency author or performer and it obligation on the basis of should allow the effective Article 6(1)(c) of Regulation assessment of the economic (EU) 2016/679 on the protection value of the rights in question. of natural persons with regard The transparency obligation to the processing of personal should nevertheless apply only data and the free movement of where copyright relevant rights such data (General Data are concerned. The processing Protection Regulation). of personal data, such as contact details and information on remuneration, that are ECOMP 3.B. Row 93. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION necessary to keep authors and performers informed on the exploitation of their works and performances should be carried out by those who need to comply with the transparency obligation on the basis of Article 6(1)(c) of Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and the free movement of such data (General Data Protection Regulation). [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 153 (40b) In order to ensure that exploitation-related information is duly provided to authors and performers also in cases where the rights have been sublicensed by the first contractor to other parties who LIMITE (40b) In order to ensure that exploitation-related information is duly provided to authors and performers also in cases where the rights have been sublicensed by the first contractor to other parties who ECOMP 3.B. Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION LIMITE BM/ EN 154 exploit the rights, this Directive exploit the rights, this Directive entitles authors and entitles authors and performers, in cases where the performers, in cases where the contractual partner has first contractual counterpart provided the information partner has provided the available to them, but the information available to them, received information is not but the received information is sufficient to assess the economic not sufficient to assess the value of their rights, to request economic value of their rights, additional relevant information to request additional relevant on the exploitation of the rights. information on the exploitation This can be ensured either of the rights. This can be directly or through the ensured either directly from contractual counterparts of sub-licensees or through the authors and performers. contractual counterparts of Member States should have the authors and performers. option, in compliance with Authors and performers and Union law, to provide for their contractual counterparts further measures through may agree to keep the shared national provisions to ensure information confidential, but transparency for authors and authors and performers should performers. always have the possibility to use the shared information for exercising their rights under in this Directive. Member States should have the option, in compliance with Union law, to ECOMP 3.B. Row 94. COMMISSION PROPOSAL COM(2016)593 (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 sectorspecific requirements. 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 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (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 sectorspecific requirements. 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 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION provide for further measures through national provisions to ensure transparency for authors and performers. [provisionally agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 155 (41) When implementing transparency obligations, Member States should take into account the specificities of different content sectors and, such as those of the rights of the authors and performers in eachmusic sector should be considered. Member States should consult, the audiovisual sector and the publishing sector and all relevant stakeholders as that should help determinebe involved when determining such sector-specific requirements. Where relevant, the significance of the contribution of authors and performers to the overall work LIMITE (41) When implementing transparency obligations, Member States should take into account the specificities of different content sectors and, such as those of the rights of the authors and performers in eachmusic sector should be considered. Member States should consult, the audiovisual sector and the publishing sector and all relevant stakeholders as that should help determinebe involved when determining such sector-specific requirements. Where relevant, the significance of the contribution of authors and performers to the overall work ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 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. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 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. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 156 or performance should also be considered. Collective bargaining should be considered as an option to reach an agreement between the relevant stakeholders regarding transparency. which should ensure authors and performers the same or higher level of transparency as the minimum requirements provided for in this Directive. 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 in respect of agreements concluded between rightholders and collective management organisations, independent management entities or other entities subject to the national rules implementing Directive 2014/26/EU as those organisations or entities are already subject to transparency LIMITE or performance should also be considered. Collective bargaining should be considered as an option to reach an agreement between the relevant stakeholders regarding transparency. which should ensure authors and performers the same or higher level of transparency as the minimum requirements provided for in this Directive. 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 and independent management entities or by other entities subject to the national rules implementing Directive 2014/26/EU as those are already subject to transparency obligations under Directive ECOMP 3.B. Row 95. COMMISSION PROPOSAL COM(2016)593 (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. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (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. 9134/18 COUNCIL TEXT 2014/26/EU. POSSIBLE COMPROMISE SOLUTION obligations under Article 18 of Directive 2014/26/EU. Article 18 of Directive 2014/26/EU applies to organisations which manage copyright or related rights on behalf of more than one rightholder for the collective benefit of those rightholders. However, individually negotiated agreements concluded between rightholders and their contractual partners who act in their own interest and should be subject to the transparency obligation provided for in this Directive. [provisionaly agreed at trilogue of 03/12/2018] BM/ EN 157 (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 LIMITE (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 ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 158 title. when the economic value of the rights turns out to be significantly higher than initially estimated. Therefore, without prejudice to the law applicable to contracts in Member States, there should be a remuneration adjustment mechanism should be provided for cases where the remuneration originally agreed under a licence or a transfer of rights isclearly becomes disproportionately low compared to the relevant revenues and the benefits derived from the subsequent exploitation of the work or the fixation of the performance, including in light of by the transparency ensured by this Directive.contractual counterpart of the author or performer. The revenues which should be taken into account for the assessment of the disproportion are all revenues relevant to the case, including, where applicable, merchandising LIMITE title. when the economic value of the rights turns out to be significantly higher than initially estimated. Therefore, without prejudice to the law applicable to contracts in Member States, there should be a remuneration adjustment mechanism should be provided for cases where the remuneration originally agreed under a licence or a transfer of rights isclearly becomes disproportionately low compared to the relevant revenues and the benefits derived from the subsequent exploitation of the work or the fixation of the performance, including in light of by the transparency ensured by this Directive.contractual counterpart of the author or performer. The assessment of the situation should take account of the specific circumstances of each case, including the contribution of the author or performer, as well as of the ECOMP 3.B. Therefore, without prejudice to Therefore, without prejudice to the law applicable to contracts in the law applicable to contracts in Member States, there should be a Member States, there should be a remuneration adjustment remuneration adjustment mechanism for cases where the mechanism for cases where the remuneration originally agreed remuneration originally agreed under a licence or a transfer of under a licence or a transfer of rights is disproportionately low rights is disproportionately low compared to the relevant revenues compared to the relevant direct and the benefits derived from the and indirect revenues and the exploitation of the work or the benefits derived from the fixation of the performance, exploitation of the work or the including in light of the fixation of the performance, transparency ensured by this including in light of the Directive. The assessment of the transparency ensured by this situation should take account of Directive. The assessment of the the specific circumstances of each situation should take account of case as well as of the specificities the specific circumstances of each and practices of the different case, as well as of the specificities content sectors. Where the parties and practices of the different do not agree on the adjustment of content sectors as well as of the the remuneration, the author or nature and the contribution to performer should be entitled to the work of the author or bring a claim before a court or performer. Such a contract other competent authority. adjustment request could also be made by the organisation representing the author or 5138/19 ANNEX Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 performer on his or her behalf, unless the request would be detrimental to the interests of the author or performer. Where the parties do not agree on the adjustment of the remuneration, the author or performer or a representative organisation appointed by them should on request by the author or performer be entitled to bring a claim before a court or other competent authority. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 159 revenues. The assessment of the situation should take account of the specific circumstances of each case, including the contribution of the author or performer, as well as of the specificities and remuneration practices of the different content sectors, and whether the contract is based on a collective bargaining agreement. Representatives of authors and performers duly mandated in accordance with national law, in compliance with Unions law, should have the possibility to provide assistance to one or more authors or performers in requesting the adjustment of the contracts, also taking into account the interests of other authors or performers when relevant. Those representatives should protect the identity of the represented authors and performers for as long as this is possible. Where the parties do not agree on the LIMITE specificities and remuneration practices of the different content sectors, and whether the contract is based on a collective bargaining agreement. 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. This mechanism should not apply to contracts concluded by entities defined in Article 3(a) and (b) of Directive 2014/26/EU or by other entities subject to the national rules implementing Directive 2014/26/UE. ECOMP 3.B. Row 96. COMMISSION PROPOSAL COM(2016)593 (43) Authors and performers are often reluctant to enforce their rights against their contractual partners before a court or tribunal. Member States should therefore provide for an alternative dispute resolution procedure that addresses claims related to 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (43) Authors and performers are often reluctant to enforce their rights against their contractual partners before a court or tribunal. Member States should therefore provide for an alternative dispute resolution procedure that addresses claims related to COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION adjustment of the remuneration, the author or performer should be entitled to bring a claim before a court or other competent authority. This mechanism should not apply to contracts concluded by entities defined in Article 3(a) and (b) of Directive 2014/26/EU or by other entities subject to the national rules implementing Directive 2014/26/UE. [provisionally agreed at TM 07/12/2018, confirmed at trilogue 13/12/2018] BM/ EN 160 (43) Authors and performers are often reluctant to enforce their rights against their contractual partners before a court or tribunal. Member States should therefore provide for an alternative dispute resolution procedure that addresses claims by authors and LIMITE (43) Authors and performers are often reluctant to enforce their rights against their contractual partners before a court or tribunal. Member States should therefore provide for an alternative dispute resolution procedure that addresses claims by authors and ECOMP 3.B. Row COMMISSION PROPOSAL COM(2016)593 obligations of transparency and the contract adjustment mechanism. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 obligations of transparency and the contract adjustment mechanism. Representative organisations of authors and performers, including collective management organisations and trade unions, should be able to initiate such procedures at the request of authors and performers. Details about who initiated the procedure should remain undisclosed. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 161 performers or their representatives on their behalf related to obligations of transparency and the contract adjustment mechanism. For that purpose, Member States may either create a new body or mechanism or rely on an existing one that fulfils the conditions established by this Directive irrespective of whether these are industry-led or public, including when incorporated in the national judiciary system. Member States should have flexibility in deciding how the costs of the dispute resolution procedure should be allocated. This alternative dispute resolution procedure should be without prejudice to the right of parties to assert and defend their rights by bringing an action before a court. LIMITE performers or their representatives on their behalf related to obligations of transparency and the contract adjustment mechanism. For that purpose, Member States may either create a new body or mechanism or rely on an existing one that fulfils the conditions established by this Directive irrespective of whether these are industry-led or public, including when incorporated in the national judiciary system. Member States should have flexibility in deciding how the costs of the dispute resolution procedure should be allocated. This alternative dispute resolution procedure should be without prejudice to the right of parties to assert and defend their rights by bringing an action before a court. ECOMP 3.B. Row 97. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (43a) When authors and performers license or transfer their rights, they expect their work or performance to be exploited. However, it happens that works or performances that have been licensed or transferred are not exploited at all. When these rights have been transferred on an exclusive basis, authors and performers cannot turn to another partner to exploit their work. In such a case, and after a reasonable period of time has lapsed, authors and performers should have a right of revocation allowing them to transfer or license their right to another person. Revocation should also be possible when the transferee or licensee has not complied with ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 162 COUNCIL TEXT 9134/18 [provisionally agreed at TM, to be confirmed at trilogue] BM/ EN (43a) When authors and performers license or transfer their rights, they expect their work or performance to be exploited. However, it happens that works or performances that have been licensed or transferred are not exploited at all. When these rights have been transferred on an exclusive basis, authors and performers cannot turn to another partner to exploit their work. In such a case, and after a reasonable period of time has elapsed, authors and performers should be able to benefit from a mechanism for the revocation of rights allowing them to transfer or license their rights to another person. Revocation should also be possible when the transferee LIMITE Row 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 his or her reporting/transparency obligation provided for in Article 14 of this Directive. The revocation should only be considered after all the steps of alternative dispute resolution have been completed, particularly with regard to reporting. As exploitation of works can vary depending on the sectors, specific provisions could be taken at national level in order to take into account the specificities of the sectors, such as the audiovisual sector, or of the works and the anticipated exploitation periods, notably providing for time limits for the right of revocation. In order to prevent abuses and take into account that a certain amount of time is needed before a work is actually exploited, authors and performers should be able to exercise the right of revocation only after a certain period of ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 163 COUNCIL TEXT 9134/18 BM/ EN or licensee has not complied with his or her reporting/transparency obligation provided for in Article 14 of this Directive. The revocation should only be considered after all the steps of alternative dispute resolution have been completed, particularly with regard to reporting. As exploitation of works can vary depending on the sectors, specific provisions could be taken at national level in order to take into account the specificities of the sectors, such as the audio-visual sector, or of the works, notably providing for time frames for the right of revocation. In order to protect the legitimate interests of licensees and transferees of rights and to prevent abuses, and taking into account that a certain amount of time is needed before a work is actually exploited, authors and LIMITE Row 98. 99. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION performers should be able to exercise the right of revocation in accordance with certain procedural requirements and only after a certain period of time following the conclusion of the license or of the transfer agreement. National law should regulate the exercise of the right of revocation in the case of works involving a plurality of authors or performers, taking into account the relative importance of the individual contributions. 9134/18 time following the conclusion of the license or of the transfer agreement. National law should regulate the exercise of the right of revocation in the case of works involving a plurality of authors or performers, taking into account the relative importance of the individual contributions. [To be deleted] A8-0245/2018 (43b) To support the effective application across Member States of the relevant provisions of this Directive, the Commission should, in cooperation with Member States, encourage the exchange of best practices and promote dialogue at Union level. BM/ EN 164 (43a) The obligations laid down in Articles 14, 15 and 16 of this LIMITE (43a) The obligations laid down in Articles 14 and 15 of this ECOMP 3.B. Row 16 COMMISSION PROPOSAL COM(2016)593 EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 COUNCIL TEXT 9134/18 Directive should be of a mandatory nature and parties should not be able to derogate from these contractual provisions, whether included in the contracts between authors, performers and their contractual counterparts or in agreements between those counterparts and third parties such as non-disclosure agreements. As a consequence, the rules set out in Article 3(4) of the Regulation (EC) No 593/2008 of the European Parliament and of the Council14 should apply to the effect that where all other elements relevant to the situation at the time of the choice are located in one or more Member States, the parties’ choice of applicable law other than that of a Member State shall not ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION Directive should be of a mandatory nature and parties should not be able to derogate from these contractual provisions, whether included in the contracts between authors, performers and their contractual counterparts or in agreements between those counterparts and third parties such as non-disclosure agreements. As a consequence, the rules set out in Article 3(4) of the Regulation (EC) No 593/2008 of the European Parliament and of the Council16 should apply to the effect that where all other elements relevant to the situation at the time of the choice are located in one or more Member States, the parties’ choice of applicable law other than that of a Member State shall not prejudice the LIMITE BM/ EN 165 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, p. 6–16). 5138/19 ANNEX Row 100. COMMISSION PROPOSAL COM(2016)593 (44) The objectives of this Directive, namely the modernisation of 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, cannot be sufficiently achieved by Member States but can rather, by reason of their scale, effects and cross-border dimension, be better achieved at Union level. Therefore, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 (44) The objectives of this Directive, namely the modernisation of 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, cannot be sufficiently achieved by Member States but can rather, by reason of their scale, effects and cross-border dimension, be better achieved at Union level. Therefore, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in COUNCIL TEXT 9134/18 prejudice the application of Articles 14 and 15, as implemented in the Member State of the forum. POSSIBLE COMPROMISE SOLUTION application of Articles 14, 15 and 16, as implemented in the Member State of the forum. [tentatively agreed at TM, confirmed at trilogue 13/12/2018] BM/ EN 166 (44) The objectives of this Directive, namely the modernisation of 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, cannot be sufficiently achieved by Member States but can rather, by reason of their scale, effects and cross-border dimension, be better achieved at Union level. Therefore, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in LIMITE (44) The objectives of this Directive, namely the modernisation of 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, cannot be sufficiently achieved by Member States but can rather, by reason of their scale, effects and cross-border dimension, be better achieved at Union level. Therefore, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in ECOMP 3.B. COMMISSION PROPOSAL EP TEXT P8_TA-PROV(2018)0337 COUNCIL TEXT that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. POSSIBLE COMPROMISE SOLUTION that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (45) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Accordingly, this Directive should be interpreted and applied in accordance with those rights and principles. 9134/18 that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (45) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Accordingly, this Directive should be interpreted and applied in accordance with those rights and principles. Row that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. (45) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Accordingly, this Directive should be interpreted and applied in accordance with those rights and principles. A8-0245/2018 101. (45) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. Accordingly, this Directive should be interpreted and applied in accordance with those rights and principles. COM(2016)593 102. 167 (46) Any processing of personal data under this Directive should respect fundamental rights, including the right to respect for private and family life and the right to protection of personal data under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and must be in compliance with Directive 95/46/EC Regulation (EU) BM/ EN (46) Any processing of personal data under this Directive should respect fundamental rights, including the right to respect for private and family life and the right to protection of personal data under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and must be in compliance with Directive 95/46/EC of the European LIMITE (46) Any processing of personal data under this Directive should respect fundamental rights, including the right to respect for private and family life and the right to protection of personal data under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and must be in compliance with Directive 95/46/EC of the European ECOMP 3.B. (46) Any processing of personal data under this Directive should respect fundamental rights, including the right to respect for private and family life and the right to protection of personal data under Articles 7 and 8 of the Charter of Fundamental Rights of the European Union and must be in compliance with 5138/19 ANNEX Row 103. 17 18 COMMISSION PROPOSAL COM(2016)593 Directive 95/46/EC of the European Parliament and of the Council16 and Directive 2002/58/EC of the European Parliament and of the Council17. EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 Parliament and of the Council15 Regulation (EU) 2016/679 and Directive 2002/58/EC of the European Parliament and of the Council16 The provisions of the General Data Protection Regulation, including the "right to be forgotten" should be respected. (46 a) It is important to stress the importance of anonymity, when handling personal data for commercial purposes. Additionally, the "by default" not sharing option with regards to personal data while using online platform interfaces COUNCIL TEXT 9134/18 Parliament and of the Council17 and Directive 2002/58/EC of the European Parliament and of the Council16. ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 2016/679 of the European Parliament and of the Council and Directive 2002/58/EC of the European Parliament and of the Council18. [deleted] LIMITE BM/ EN 168 Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31–50). This Directive is repealed with effect from 25 May 2018 and shall be replaced by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1–88). Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002, p. 37– 47), called, as amended by Directives 2006/24/EC and 2009/136/EC, the “e-Privacy Directive”. 5138/19 ANNEX Row 104. 19 COMMISSION PROPOSAL COM(2016)593 (47) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents17, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified, OJ C 369, 17.12.2011, p. 14. 5138/19 ANNEX EP TEXT P8_TA-PROV(2018)0337 A8-0245/2018 should be promoted. COUNCIL TEXT 9134/18 POSSIBLE COMPROMISE SOLUTION BM/ EN 169 (47) In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents19, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified, LIMITE (47) In accordance with the Joint (47) In accordance with the Joint Political Declaration of 28 Political Declaration of 28 September 2011 of Member September 2011 of Member States and the Commission on States and the Commission on explanatory documents17, explanatory documents17, Member States have undertaken Member States have undertaken to accompany, in justified cases, to accompany, in justified cases, the notification of their the notification of their transposition measures with one transposition measures with one or more documents explaining the or more documents explaining the relationship between the relationship between the components of a directive and the components of a directive and the corresponding parts of national corresponding parts of national transposition instruments. With transposition instruments. With regard to this Directive, the regard to this Directive, the legislator considers the legislator considers the transmission of such documents transmission of such documents to be justified, to be justified, ECOMP 3.B. 105. 106. 107. 5138/19 ANNEX on copyright in the Digital Single Market COM (2016) 593 final - 2016/0280 (COD) PART 2: ARTICLES Cell in green: The text can be deemed as already agreed Cell in yellow: The issue needs further discussion at technical level Cell in red: The issue needs further discussion in depth at the trilogue meetings COUNCIL TEXT TITLE I GENERAL PROVISIONS EP TEXT TITLE I GENERAL PROVISIONS Article 1 Subject matter and scope doc. 9134/18 TITLE I GENERAL PROVISIONS Article 1 Subject matter and scope COMMISSION PROPOSAL COM(2016)593 TITLE I GENERAL PROVISIONS Article 1 Subject matter and scope BM/ EN 170 1. This Directive lays down rules which aim at further harmonising the Union law applicable to copyright and related rights in the framework GREEN Article 1 Subject matter and scope POSSIBLE COMPROMISE SOLUTION Proposal for a Directive of the European Parliament and of the Council Location Art.1, title Art. 1, para 1 1. This 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 LIMITE 1. This 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 1. This 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 ECOMP 3.B. 108. 5138/19 ANNEX Location Art. 1, para 2 COMMISSION PROPOSAL COM(2016)593 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. 2. Except in the cases referred to in Article 6, this Directive shall leave intact and shall in no way affect existing rules laid down in the Directives currently in force in this area, in particular Directives 96/9/EC, 2001/29/EC, 2006/115/EC, 2009/24/EC, 2012/28/EU and 2014/26/EU. EP TEXT 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. 2. Except in the cases referred to in Article 6, this Directive shall leave intact and shall in no way affect existing rules laid down in the Directives currently in force in this area, in particular Directives 96/9/EC, 2000/31/EC, 2001/29/EC, 2006/115/EC, 2009/24/EC, 2012/28/EU and 2014/26/EU. ECOMP 3.B. COUNCIL TEXT doc. 9134/18 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. POSSIBLE COMPROMISE SOLUTION 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. [identical text] GREEN 171 2. Except in the cases referred to in Article 617, this Directive shall leave intact and shall in no way affect existing rules laid down in the Directives currently in force in this area, in particular Directives 96/9/EC, 2000/31/EC, 2001/29/EC, 2006/115/EC, 2009/24/EC, 2012/28/EU and 2014/26/EU. 2. Except in the cases referred to in Article 617, this Directive shall leave intact and shall in no way affect existing rules laid down in the Directives currently in force in this area, in particular Directives 96/9/EC, 2000/31/EC, 2001/29/EC, 2006/115/EC, 2009/24/EC, 2012/28/EU and 2014/26/EU. BM/ EN [identical text/consequential LIMITE 109. Art. 2, title Location 110. Art. 2, para 1, point (a) Art. 2, para 1, introductory part Art. 2, introductory part 111. 112. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 Article 2 Definitions For the purposes of this Directive, the following definitions shall apply: (1) ‘research organisation’ means a university, a research institute or any other organisation the primary goal of which is to conduct scientific research or to conduct scientific research and provide educational services: (a) on a non-for-profit basis or by reinvesting all EP TEXT Article 2 Definitions For the purposes of this Directive, the following definitions shall apply: (1) ‘research organisation’ means a university, including its libraries, a research institute or any other organisation the primary goal of which is to conduct scientific research or to conduct scientific research and provide educational services: (a) on a non-for-profit basis or by reinvesting all ECOMP 3.B. COUNCIL TEXT doc. 9134/18 Article 2 Definitions For the purposes of this Directive, the following definitions shall apply: (1) ‘research organisation’ means a university, a research institute or any other organisationan entity, the primary goal of which is to conduct scientific research or to conduct scientific research and provide educational services: involving also the conduct of scientific research: POSSIBLE COMPROMISE SOLUTION Article 2 Definitions change of cross-reference, confirmed by trilogue 03/12/2018] GREEN For the purposes of this Directive, the following definitions shall apply: GREEN (1) ‘research organisation’ means a university, including its libraries, a research institute or any other entity the primary goal of which is to conduct scientific research or to carry out educational activities involving also the conduct of scientific research: [provisionally agreed at Trilogue 25/10/2018] 172 GREEN BM/ EN (a) on a non-for-profit basis or by reinvesting all the profits in its scientific LIMITE 113. 114. 5138/19 ANNEX Location Art. 2, para 1, point (b) Art. 2, para 1, closing phrase COMMISSION PROPOSAL COM(2016)593 the profits in its scientific research; or (b) pursuant to a public interest mission recognised by a Member State; in such a way that the access to the results generated by the scientific research cannot be enjoyed on a preferential basis by an undertaking exercising a decisive influence upon such organisation; EP TEXT the profits in its scientific research; or (b) pursuant to a public interest mission recognised by a Member State; in such a way that the access to the results generated by the scientific research cannot be enjoyed on a preferential basis by an undertaking exercising a significant influence upon such organisation; ECOMP 3.B. COUNCIL TEXT doc. 9134/18 research; or (b) pursuant to a public interest mission recognised by a Member State; POSSIBLE COMPROMISE SOLUTION (a) on a non-for-profit basis or by reinvesting all the profits in its scientific research; or [provisionally agreed at Trilogue 25/10/2018] GREEN (b) pursuant to a public interest mission recognised by a Member State; [provisionally agreed at Trilogue 25/10/2018] in such a way that the access GREEN to the results generated by the scientific research cannot in such a way that the access to be enjoyed on a preferential the results generated by the basis by an undertaking scientific research cannot be exercising a decisive enjoyed on a preferential basis influence upon such by an undertaking exercising a organisation; significant decisive influence upon such organisation; BM/ EN 173 [provisionally agreed at Trilogue 25/10/2018] LIMITE 115. 116. 117. 5138/19 ANNEX Art. 2, para 2 Location COMMISSION PROPOSAL COM(2016)593 EP TEXT (2) 'text and data mining' means any automated analytical technique which analyses works and other subject matter in digital form in order to generate information, including, but not limited to, patterns, trends and correlations. (4) ‘press publication’ means a fixation by publishers or news agencies of a collection of literary COUNCIL TEXT doc. 9134/18 (2) ‘text and data mining’ means any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations; POSSIBLE COMPROMISE SOLUTION GREEN (2) ‘text and data mining’ means any automated analytical technique aiming to analyse text and data in digital form in order to generate information, including, but not limited to, patterns, trends and correlations; [provisionally agreed at Trilogue 25/10/2018] [provisionally agreed at Trilogue 25/10/2018] GREEN BM/ EN 174 (4) ‘press publication’ means a collection composed mainly of LIMITE (4) ‘press publication’ means a fixation of a collection composed mainly of literary works of a (3) ‘cultural heritage (3) ‘cultural heritage (3) ‘cultural heritage GREEN institution’ means a publicly institution’ means a publicly institution’ means a publicly accessible library or (3) ‘cultural heritage accessible library or accessible library or museum, an archive or a film institution’ means a publicly museum, an archive or a film museum, an archive or a film or audio heritage institution; accessible library or museum, or audio heritage institution; or audio heritage institution; an archive or a film or audio heritage institution; (2) ‘text and data mining’ means any automated analytical technique aiming to analyse text and data in digital form in order to generate information such as patterns, trends and correlations; Art. 2, para 3 Art. 2, para 4 (4) ‘press publication’ means a fixation of a collection of literary works of a journalistic nature, ECOMP 3.B. 118. 5138/19 ANNEX Location Art. 2, para 4, point (a) COMMISSION PROPOSAL COM(2016)593 which may also comprise other works or subjectmatter and constitutes an individual item within a periodical or regularlyupdated publication under a single title, such as a newspaper or a general or special interest magazine, having the purpose of providing information related to news or other topics and published in any media under the initiative, editorial responsibility and control of a service provider. EP TEXT works of a journalistic nature, which may also comprise other works or subject-matter and constitutes an individual item within a periodical or regularly-updated publication under a single title, such as a newspaper or a general or special interest magazine, having the purpose of providing information related to news or other topics and published in any media under the initiative, editorial responsibility and control of a service provider. Periodicals which are published for scientific or academic purposes, such as scientific journals, shall not be covered by this definition; ECOMP 3.B. COUNCIL TEXT doc. 9134/18 journalistic nature, which : POSSIBLE COMPROMISE SOLUTION literary works of a journalistic nature which: (a) may also include other works or subject matter; [remaining part of this pargraph was split up in points (a) to (d) - see following rows 118-121] (a) may also compriseinclude other works or subject-matter and ; 175 [provisionally agreed at trilogue on 03/12/2018] BM/ EN GREEN LIMITE 119. 120. 5138/19 ANNEX Location Art. 2, para 4, point (b) Art. 2, para 4, point (c) COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION b) constitutes an individual item within a periodical or regularly updated publication under a single title, such as a newspaper or a general or special interest magazine; GREEN [See Article 2(4) of COM proposal and of EP text (row [provisionally agreed at 117)] trilogue on 03/12/2018] (b) constitutes an individual item within a periodical or regularlyupdated publication under a single title, such as a newspaper or a general or special interest magazine, ; 2. [See Article 2(4) of COM proposal and of EP text (row 117)] [provisionally agreed at trilogue on 03/12/2018] BM/ EN 176 (c) has having the purpose GREEN of providing the general (c) has the purpose of public with information providing the general public(*) related to news or other with information related to topics; and news or other topics; and [See Article 2(4) of COM proposal and of EP text (row [provisionally agreed at 117)] trilogue on 03/12/2018; (*) to be read in conjunction with the clarifications in recital (33), LIMITE 121. Location Art. 2, para 4, point (d) COMMISSION PROPOSAL COM(2016)593 EP TEXT COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION row 70] GREEN (d) is published in any media under the initiative, editorial responsibility and control of a service provider. (deleted) (d) is published in any media under the initiative, editorial responsibility and control of a service provider.; [See Article 2(4) of COM proposal and of EP text (row 117)] Periodicals which are published for scientific or academic purposes, such as scientific journals, shall not be considered as press publications for the purposes of this Directive. (4a) ‘out of commerce work’ means: [provisionally agreed at trilogue on 03/12/2018] 122. Art. 2, para 4a, introductory part 177 (deleted) BM/ EN 123. LIMITE (a) an entire work or other subject matter in any ECOMP 3.B. Art. 2, para 4a, point (a) 5138/19 ANNEX 124. 125. 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT Art. 2, para 4a, point (b) (b) a work or other subject matter that has never been in commerce in a Member State, unless, from the circumstances of that case, it is apparent that its author objected to making it available to the public; version or manifestation that is no longer available to the public in a Member State through customary channels of commerce; Art. 2, para 4b (EP)/para 5 (Council) (4b) ‘online content sharing service provider’ means a provider of an information society service one of the main purposes of which is to store and give access to the public to a significant amount of copyright protected works or other protected subject- ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION (5) ‘online content sharing service provider’ means a provider of an information society service whose main or one of the main purposes is to store and give the public access to a large amount of works or other subject-matter uploaded by its users which it organises and promotes for profit- 178 5) ‘online content sharing service provider’ means a provider of an information society service whose main or one of the main purposes is to store and enable user to upload and share a large(*) amount of copyright protected works or other protected subject-matter which the service organises doc. 9134/18 BM/ EN (deleted) LIMITE 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT matter uploaded by its users, which the service optimises and promotes for profit making purposes. Microenterprises and smallsized enterprises within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC and services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all right holders concerned, such as educational or scientific repositories, shall not be considered online content sharing service providers within the meaning of this Directive. Providers of ECOMP 3.B. COUNCIL TEXT doc. 9134/18 profit- POSSIBLE COMPROMISE SOLUTION and promotes for making purposes. 179 making purposes. Providers of services such as non-for-profit online encyclopaedias, non-forprofit educational and scientific repositories, nonfor-profit open source software developing platforms, as well as internet access service providers, online marketplaces and providers of cloud services which allow users, including businesses for their internal purposes, to upload content for their own use shall not be considered online content sharing service providers within the meaning of this Directive; BM/ EN [EP: Microenterprises and small-sized enterprises within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC] providers of services such as not-for profit online encyclopedias, not-for profit educational and scientific repositories, open source software developing and sharing platforms, electronic communication service providers [as defined in the new Telecom Code], online marketplaces and business-to business cloud services and cloud services which allow users to upload content for their own use shall not be considered online content sharing service LIMITE 126. 5138/19 ANNEX Location Art. 2, para 4c (EP)/para 6 (Council) COMMISSION PROPOSAL COM(2016)593 EP TEXT cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this Directive; (4c) ‘information society service’ means a service within the meaning of point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council1a; ___________ 1a Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION providers within the meaning of this Directive. [(*) COM to provide recital on “large amount”; exclusion of Micro- and SMEs to be further discussed] GREEN 180 (6) ‘information society service’ means a service within the meaning of Article 1(1)(b) of Directive (EU) 2015/1535. (6) ‘information society service’ means a service within the meaning of Article 1(1)(b) of Directive (EU) 2015/15351a. ___________ BM/ EN 1a Directive (EU) 2015/1535 of the European Parliament and LIMITE 127. 128. 5138/19 ANNEX Location Art. 2, para 4d COMMISSION PROPOSAL COM(2016)593 TITLE II MEASURES TO ADAPT EXCEPTIONS AND LIMITATIONS TO THE DIGITAL AND CROSS- EP TEXT down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1). (4d) ‘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. TITLE II MEASURES TO ADAPT EXCEPTIONS AND LIMITATIONS TO THE DIGITAL AND CROSS- ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1). 181 TITLE II MEASURES TO ADAPT EXCEPTIONS AND LIMITATIONS TO THE DIGITAL AND CROSS- BM/ EN TITLE II MEASURES TO ADAPT EXCEPTIONS AND LIMITATIONS TO THE DIGITAL AND CROSS- LIMITE 129. 130. 5138/19 ANNEX Location Art. 3, title Art. 3, para 1 COMMISSION PROPOSAL COM(2016)593 EP TEXT Article 3 Text and data mining 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 research organisations have lawful access and made in order to carry out text and data COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION Article 3 Text and data mining for the purposes of scientific research [provisionally agreed at Trilogue 25/10/2018] GREEN BM/ EN 182 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 and cultural heritage institutions in order to carry out text and data mining of works or other subject-matter to which they have lawful access, for the purposes of scientific research. LIMITE 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 and cultural heritage institutions in order to carry out text and data mining of works or other subject-matter to which they have lawful access, for the purposes of Article 3 GREEN Text and data mining for the purposes of scientific research BORDER ENVIRONMENT BORDER ENVIRONMENT BORDER ENVIRONMENT BORDER ENVIRONMENT Article 3 Text and data mining 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 the purposes of scientific research. ECOMP 3.B. 131. 5138/19 ANNEX Location Art. 3, para 1a COMMISSION PROPOSAL COM(2016)593 EP TEXT mining for the purposes of scientific research by such organisations. Member States shall provide for educational establishments and cultural heritage institutions conducting scientific research within the meaning of point (1)(a) or (1)(b) of Article 2, in such a way that the access to the results generated by the scientific research cannot be enjoyed on a preferential basis by an undertaking exercising a decisive influence upon such organisations, to also be able to benefit from the exception provided for in this Article. 1a. Reproductions and extractions made for text and data mining purposes shall be stored in a secure manner, for example by ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 1a. Copies of works or other subject-matter made in compliance with paragraph 1 scientific research. 1a.Copies of works or other subject-matter made in compliance with paragraph 1 shall be stored with an 183 [provisionally agreed at Trilogue 25/10/2018] BM/ EN GREEN LIMITE 132. 133. 5138/19 ANNEX Location Art. 3, para 2 Art. 3, para 3 COMMISSION PROPOSAL COM(2016)593 2. Any contractual provision contrary to the exception provided for in paragraph 1 shall be unenforceable. 3. Rightholders shall 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 not go beyond what is necessary to achieve that EP TEXT trusted bodies appointed for this purpose. 2. Any contractual provision contrary to the exception provided for in paragraph 1 shall be unenforceable. [See Council’s Article 6(1) (row 155)] 3. Rightholders shall 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 not go beyond what is necessary to achieve that ECOMP 3.B. COUNCIL TEXT doc. 9134/18 appropriate level of security and not be retained for longer than necessary for achieving the purposes of scientific research. 2. [Moved to Article 6(1)] POSSIBLE COMPROMISE SOLUTION shall be stored with an appropriate level of security and may be retained for the purposes of scientific research, including for the verification of research results. [provisionally agreed at Trilogue 25/10/2018] GREEN [Moved to Article 6(1)] [provisionally agreed at Trilogue 25/10/2018] GREEN 184 3. Rightholders shall 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 BM/ EN 3. Rightholders shall 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 not go beyond what is necessary to achieve that LIMITE 134. 5138/19 ANNEX Location Art. 3, para 4 COMMISSION PROPOSAL COM(2016)593 objective. 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 3. EP TEXT objective. 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 3.may continue to provide text and data mining exceptions in accordance with point (a) of Article 5(3) of Directive 2001/29/EC. ECOMP 3.B. COUNCIL TEXT doc. 9134/18 objective. POSSIBLE COMPROMISE SOLUTION not go beyond what is necessary to achieve that objective. [provisionally agreed at Trilogue 25/10/2018] GREEN 185 4. Member States shall encourage rightholders and, research organisations and cultural heritage institutions to define commonly-agreed best practices concerning the application of the obligation and measures referred to respectively in paragraphs 1a and 3. 4. Member States shall encourage rightholders and, research organisations and cultural heritage institutions to define commonly-agreed best practices concerning the application of the obligation and measures referred to respectively in paragraphs 1a and 3. [provisionally agreed at Trilogue 26 November] BM/ EN [the relation with existing exceptions under InfoSoc Directive under Article 17a LIMITE 135. 136. 5138/19 ANNEX Location Art. 3a, title Art. 3a, para 1 COMMISSION PROPOSAL COM(2016)593 EP TEXT Article 3a Optional exception or limitation for text and data mining 1. Without prejudice to Article 3 of this Directive, Member States may provide for an exception or a limitation 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 of lawfully accessible works and other subject-matter that form a part of the process of text and data mining, provided that the use of works and ECOMP 3.B. COUNCIL TEXT doc. 9134/18 Article 3a Optional exception or limitation for text and data mining POSSIBLE COMPROMISE SOLUTION (see row 306)] Article 3a Optional exception or limitation for text and data mining BM/ EN 186 1. Without prejudice to 1. Without prejudice to Article Article 3 of this Directive 3 of this Directive, Member Member States may States may/shall provide for provide for an exception or an exception or a limitation to a limitation to the rights provided for in Article 2 of the rights provided for in Article 2 of Directive Directive 2001/29/EC, 2001/29/EC, Articles 5(a) and Articles 5(a) and 7(1) of Directive 96/9/EC and 7(1) of Directive 96/9/EC, Article 11(1) of this Article 4(1)(a) and (b) of Directive for temporary Directive 2009/24/EC and reproductions and Article 11(1) of this Directive extractions of lawfully accessible works and other for temporary reproductions subject-matter that form a and extractions of lawfully accessible works and other part of the process of text and data mining. subject-matter that form a part of the process for the purposes of text and data LIMITE 137. 5138/19 ANNEX Location Art. 3a, para 2 (EP) COMMISSION PROPOSAL COM(2016)593 EP TEXT other subject matter referred to therein has not been expressly reserved by their rightholders, including by machine readable means. 2. Reproductions and extractions made pursuant to paragraph 1 shall not be used for purposes other than text and data mining. ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 187 doc. 9134/18 mining. [COM suggestion to turn the optional exception into a mandatory one by replacing “may provide” by “shall provide” to be discussed further at political level. Apart from 'may' or 'shall', text of Article 3a provisionally agreed at trilogue 26/11/2018 as set out in rows 136, 137, 138 and 139] GREEN 2. Reproductions and extractions made pursuant to paragraph 1 may be retained as long as necessary for the purposes of text and data mining. BM/ EN [provisionally agreed at Trilogue 25/10/2018 / LIMITE 138. 139. 5138/19 ANNEX Location Art. 3a, para 2 (Council) Art. 3a, para 3 COMMISSION PROPOSAL COM(2016)593 EP TEXT 3. Member States may continue to provide text and data mining exceptions in ECOMP 3.B. COUNCIL TEXT doc. 9134/18 2. The exception or limitation provided for in paragraph 1 shall apply provided that the use of works and other subject matter referred to therein has not been expressly reserved by their rightholders including by technical means. POSSIBLE COMPROMISE SOLUTION 26/11/2018] GREEN 2. The exception or limitation provided for in paragraph 1 shall apply provided that the use of works and other subject matter referred to therein has not been expressly reserved by their rightholders in an appropriate manner, such as machine readable means for the content made publicly available online. 188 [See para. 1 of EP text (row 136)] [provisionally agreed at Trilogue 26/11/2018 in conjunction with wording of recital (13a) (row 28)] GREEN BM/ EN 3. This Article shall not affect the application of LIMITE 140. 141. 5138/19 ANNEX Location Art. 4, title Art. 4, para 1 EP TEXT COUNCIL TEXT doc. 9134/18 Article 4 Use of works and other subject-matter in digital and cross-border teaching activities COMMISSION PROPOSAL COM(2016)593 Article 4 Use of works and other subject-matter in digital and cross-border teaching activities accordance with point (a) of Article 5 (3) of Directive 2001/29/EC. Article 4 Use of works and other subject-matter in digital and cross-border teaching activities POSSIBLE COMPROMISE SOLUTION Article 3 of this Directive. [This phrase replaces the 'Without prejudice'clarification previously contained in paragraph 1. [provisionaly agreed at Trilogue 26/11/2018] Agreed at Trilogue 25/10/2018 to introduce the relation with existing exceptions under InfoSoc Directive under Article 17a (see row 306)] Article 4 Use of works and other subject-matter in digital and cross-border teaching activities GREEN 1. Member States shall provide for an exception or limitation to the rights 189 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), BM/ EN 1. Member States shall provide for an exception or limitation to the rights provided for in Articles 2 and 3 of Directive LIMITE 1. Member States shall provide for an exception or limitation to the rights provided for in Articles 2 and 3 of Directive ECOMP 3.B. 142. 5138/19 ANNEX Location Art. 4, para 1, point (a) COMMISSION PROPOSAL COM(2016)593 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1) of Directive 2009/24/EC and Article 11(1) of this Directive in order to allow for the digital use of works and other subject-matter for the sole purpose of illustration for teaching, to the extent justified by the non-commercial purpose to be achieved, provided that the use: (a) takes place on the premises of an educational establishment or through a EP TEXT 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1) of Directive 2009/24/EC and Article 11(1) of this Directive in order to allow for the digital use of works and other subject-matter for the sole purpose of illustration for teaching, to the extent justified by the non-commercial purpose to be achieved, provided that the use: (a) takes place on the premises of an educational establishment, or in any ECOMP 3.B. COUNCIL TEXT doc. 9134/18 (b), (d) and (e) and Article 7(1) of Directive 96/9/EC, Article 4(1)(a) and (b) of Directive 2009/24/EC and Article 11(1) of this Directive in order to allow for the digital use of works and other subject-matter for the sole purpose of illustration for teaching, to the extent justified by the non-commercial purpose to be achieved, provided that thesuch use: POSSIBLE COMPROMISE SOLUTION provided for in Articles 2 and 3 of Directive 2001/29/EC, Articles 5(a), (b), (d) and (e) and 7(1) of Directive 96/9/EC, Article 4(1)(a), and (b) of Directive 2009/24/EC and Article 11(1) of this Directive in order to allow the digital use of works and other subjectmatter for the sole purpose of illustration for teaching, to the extent justified by the noncommercial purpose to be achieved, provided that such use: [provisionally agreed at Trilogue 26/11/2018; reference to Directive 2009/24/EC agreed provided that it is clarified in a recital that distribution of software allowed under the exception is limited to digital transmission of software] GREEN 190 (a) takes place under the BM/ EN (a) takes place onunder the premises responsibility of an educational LIMITE 143. 144. 5138/19 ANNEX Location Art. 4, para 1, point (b) Art. 4, para 2, sub-para 1 COMMISSION PROPOSAL COM(2016)593 secure electronic network accessible only by the educational establishment's pupils or students and teaching staff; (b) is accompanied by the indication of the source, including the author's name, unless this turns out to be impossible. 2. Member States may provide that the exception adopted pursuant to EP TEXT other venue in which the teaching activity takes place under the responsibility of the educational establishment, or through a secure electronic network environment accessible only by the educational establishment's pupils or students and teaching staff; (b) is accompanied by the indication of the source, including the author's name, unless this turns out to be impossible for reasons of practicability. 2. Member States may provide that the exception adopted pursuant to ECOMP 3.B. COUNCIL TEXT doc. 9134/18 establishment, on its premises or other venues, or through a secure electronic network accessible only by the educational establishment's pupils or students and teaching staff; and (b) is accompanied by the indication of the source, including the author's name, unless this turns out to be impossible. POSSIBLE COMPROMISE SOLUTION responsibility of an educational establishment, on its premises or other venues, or through a secure electronic environment accessible only by the educational establishment's pupils or students and teaching staff; and [provisionally agreed at Trilogue 26/11/2018 together with text on recital 16a, row 33] GREEN (b) is accompanied by the indication of the source, including the author's name, unless this turns out to be impossible. [provisionally agreed at Trilogue 25/10/2018] GREEN 191 2. Notwithstanding Article BM/ EN 2. Notwithstanding Article 6(1), Member States may provide that the LIMITE 145. 5138/19 ANNEX Location Art. 4, para 2, sub-para 2 COMMISSION PROPOSAL COM(2016)593 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. Member States availing themselves of the provision of the first subparagraph shall take the necessary measures to ensure EP TEXT paragraph 1 does not apply generally or as regards specific types of works or other subject-matter, such as material which is primarily intended for the educational market or sheet music, to the extent that adequate licences licencing agreements authorising the acts described in paragraph 1 and tailored to the needs and specificities of educational establishments are easily available in the market. Member States availing themselves of the provision of the first subparagraph shall take the necessary measures to ensure ECOMP 3.B. COUNCIL TEXT doc. 9134/18 exception adopted pursuant to paragraph 1 does not apply generally or as regards specific uses or types of works or other subjectmatter, to the extent that adequate licences covering the needs of educational establishments and authorising the acts described in paragraph 1 are easily available in the market. POSSIBLE COMPROMISE SOLUTION 6(1), Member States may provide that the exception adopted pursuant to paragraph 1 does not apply generally or as regards specific uses or types of works or other subject-matter, such as material which is primarily intended for the educational market or sheet music, to the extent that suitable licences authorising the acts described in paragraph 1 covering the needs and specificities of educational establishments are easily available in the market. [provisionally agreed at Trilogue 25/10/2018 / 26/11/2018 together with text on recitals (16) and (17), rows 32 and 35 tbc by trilogue] GREEN 192 Member States availing themselves of the provision of the first subparagraph shall BM/ EN Member States availing themselves of the provision of the first subparagraph shall take the necessary measures to ensure LIMITE 146. 5138/19 ANNEX Location Art. 4, para 3 COMMISSION PROPOSAL COM(2016)593 appropriate availability and visibility of the licences authorising the acts described in paragraph 1 for educational establishments. 3. The use of works and other subject-matter for the sole purpose of illustration for teaching through secure electronic networks undertaken in compliance with the provisions of national law adopted pursuant to this Article shall be deemed to occur solely in the Member State where the educational establishment is established. EP TEXT appropriate availability and visibility of the licences authorising the acts described in paragraph 1 for educational establishments. 3. The use of works and other subject-matter for the sole purpose of illustration for teaching through secure electronic networks environments undertaken in compliance with the provisions of national law adopted pursuant to this Article shall be deemed to occur solely in the Member State where the educational establishment is established. ECOMP 3.B. COUNCIL TEXT doc. 9134/18 appropriate availability and visibility ofthat rightholders make the licences authorising the acts described in paragraph 1 available and visible for educational establishments. POSSIBLE COMPROMISE SOLUTION take the necessary measures to ensure appropriate availability and visibility of the licences authorising the acts described in paragraph 1 for educational establishments. [provisionally agreed at Trilogue 26/11/2018 together with text on recital (17) and (17a), rows 35 and 36] GREEN 193 3. The use of works and other subject-matter for the sole purpose of illustration for teaching through secure electronic networks undertaken in compliance with the provisions of national law adopted pursuant to this Article shall be deemed to occur solely in the Member State where the educational establishment is established. 3. The use of works and other subject-matter for the sole purpose of illustration for teaching through secure electronic environments undertaken in compliance with the provisions of national law adopted pursuant to this Article shall be deemed to occur solely in the Member State where the educational establishment is established. BM/ EN [provisionally agreed at Trilogue 25/10/2018 / LIMITE 147. 148. 5138/19 ANNEX Location Art. 4, para 4 Art. 4, para 4a COMMISSION PROPOSAL COM(2016)593 4. 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. EP TEXT 4. 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. 4a. Without prejudice to paragraph 2, any contractual provision contrary to the exception or limitation adopted pursuant to paragraph 1 shall be unenforceable. Member States shall ensure that rightholders have the right to grant royalty-free licences authorising the acts described in paragraph 1, ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 26/11/2018 together with text on recital 16a, row 33] GREEN 4. Member States may provide for fair compensation for the harm incurred by the to rightholders due to the use of their works or other subjectmatter pursuant to paragraph 1. 194 4. Member States may provide for fair compensation for the harm incurred by theto rightholders due to the use of their works or other subjectmatter pursuant to paragraph 1. [provisionally agreed at Trilogue 25/10/2018 / 26/11/2018 together with text on recital (17a), row 36] [provisionally agreed at trilogue 25/10/2018 to deal with contractual override under Article 6(1)] BM/ EN [Commission to provide a general recital on royalty free licences] LIMITE 149. 150. 5138/19 ANNEX Location EP TEXT Article 5 Preservation of cultural heritage COMMISSION PROPOSAL COM(2016)593 generally or as regards specific types of works or other subject-matter that they may choose. Art. 5, title Article 5 Preservation of cultural heritage 1. Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1)(a) of Directive 2009/24/EC and Article 11(1) of this Directive, permitting cultural heritage institutions to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for the sole purpose purposes of preservation of [See Council’s Article 6(1) (row 155)] Art. 5, [para 1 (EP)] 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, to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for the sole purpose of the preservation of such ECOMP 3.B. COUNCIL TEXT doc. 9134/18 Article 5 Preservation of cultural heritage POSSIBLE COMPROMISE SOLUTION Article 5 Preservation of cultural heritage GREEN 195 1. Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1)(a) of Directive 2009/24/EC and Article 11(1) of this Directive, permitting cultural heritage institutions to make copies of any works or other subjectmatter that are permanently in their collections, in any format or medium, for purposes of preservation of such works or BM/ EN 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, to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for the sole purpose of the preservation of such LIMITE 151. 5138/19 ANNEX Location Art. 5, para 1a COMMISSION PROPOSAL COM(2016)593 works or other subjectmatter and to the extent necessary for such preservation. EP TEXT such works or other subjectmatter and to the extent necessary for such preservation. 1a. Member States shall ensure that any material resulting from an act of reproduction of material in the public domain shall not be subject to copyright or related rights, provided that such reproduction is a faithful reproduction for purposes of preservation of the original material. ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION other subject-matter and to the extent necessary for such preservation. 196 works or other subjectmatter and to the extent necessary for such preservation. [provisionally agreed at trilogue 25/10/2018] 1a. Member States shall provide that, when the term of protection of a work of visual art has expired, any material resulting from an act of reproduction of that work shall not be subject to copyright or related rights, unless the material resulting from that act of reproduction is original in the sense that it is the author's own intellectual creation. BM/ EN [provisionaly agreed at trilogue of 13/12/2018 together with deletion of Article 6(1), row 154, and in conjuction with new recital in row 45a.] LIMITE 152. 153. 154. 5138/19 ANNEX Location Art. 5, para 1b Art. 6, title Art. 6, para 1 (EP) COMMISSION PROPOSAL COM(2016)593 Article 6 Common provisions EP TEXT 1b. Any contractual provision contrary to the exception provided for in paragraph 1 shall be unenforceable. [See Council’s Article 6(1) (row 155)] Article 6 Common provisions 1. Accessing content covered by an exception provided for in this Directive shall not confer on users any entitlement to ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION [To be decided whether to place paragraph 1a outside Article 5, as this is not about an exception] GREEN [provisionally agreed at trilogue 25/10/2018 to deal with contractual override under Article 6(1)] Article 6 Common provisions 197 Article 6 Common provisions GREEN Deleted BM/ EN [provisionally agreed at LIMITE 155. 156. 5138/19 ANNEX Location Art. 6, para 1 (Council) Art. 6, para 2 COMMISSION PROPOSAL COM(2016)593 Article 5(5) and the first, third 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. EP TEXT use it pursuant to another exception. COUNCIL TEXT doc. 9134/18 1. Any contractual provision contrary to the exceptions provided for in Articles 3, 4(1) and 5 shall be unenforceable. [See Article 3(2) of the COM proposal and Parliament’s Articles 3(2) and 4(4a) and 5(1b)] POSSIBLE COMPROMISE SOLUTION trilogue 13/12/2018] GREEN 1. Any contractual provision contrary to the exceptions provided for in Articles 3, 4 and 5 shall be unenforceable. [provisionally agreed at trilogue 25/10/2018] 2. Article 5(5) of Directive 2001/29/EC shall apply to the exceptions and the limitation provided for under this Title. The first, third and fifth subparagraphs of Article 6(4) of Directive 2001/29/EC shall apply to Articles 3, 4 and 5 of this Directive. BM/ EN 198 [EP agrees to drop reference to the fourth subparagraph of Article 6(4) of Directive 2001/29/EC; LIMITE 2. Article 5(5) and theof 2. Article 5(5) and the Directive 2001/29/EC shall first, third, fourth and fifth apply to the exceptions and subparagraphs of Article the limitation provided for 6(4) of Directive under this Title. The first, 2001/29/EC shall apply to third and fifth subparagraphs the exceptions and the of Article 6(4) of Directive limitation provided for under 2001/29/EC shall apply to this Title. the exceptionsArticles 3, 4(1) and the limitation provided for under5 of this TitleDirective. ECOMP 3.B. Location EP TEXT COUNCIL TEXT TITLE III MEASURES TO IMPROVE LICENSING PRACTICES AND ENSURE WIDER ACCESS TO CONTENT doc. 9134/18 TITLE III MEASURES TO IMPROVE LICENSING PRACTICES AND ENSURE WIDER ACCESS TO CONTENT COMMISSION PROPOSAL COM(2016)593 157. TITLE III MEASURES TO IMPROVE LICENSING PRACTICES AND ENSURE WIDER ACCESS TO CONTENT POSSIBLE COMPROMISE SOLUTION TM 07.12: general reference to exceptions to be made in second sentence; to be finalised at technical level] TITLE III MEASURES TO IMPROVE LICENSING PRACTICES AND ENSURE WIDER ACCESS TO CONTENT CHAPTER 1 Out-of-commerce works Article 7 Use of out-of-commerce works by cultural heritage institutions GREEN BM/ EN 199 1. Member States shall provide that a collective management organisation, in accordance with its mandates, may conclude a non-exclusive licence for non-commercial purposes with a cultural LIMITE 1. Member States shall provide that when a collective management organisation, on behalf of in accordance with its members, concludesmandates, may conclude a non-exclusive licence for non-commercial Article 7 Use of out-of-commerce works by cultural heritage institutions 158. Article 7 Use of out-of-commerce works by cultural heritage institutions CHAPTER 1 Out-of-commerce works Art. 7, title Article 7 Use of out-of-commerce works by cultural heritage institutions CHAPTER 1 Out-of-commerce works Art. 7, para 1, introductory part 1. Member States shall provide that when a collective management organisation, on behalf of its members, concludes a nonexclusive licence for noncommercial purposes with a cultural heritage institution for the digitisation, ECOMP 3.B. 1. Member States shall provide that when a collective management organisation, on behalf of its members, concludes a nonexclusive licence for noncommercial purposes with a cultural heritage institution for the digitisation, CHAPTER 1 Out-of-commerce works 159. 160. 5138/19 ANNEX 161. 5138/19 ANNEX Location Art. 7, para 1, point (a) COMMISSION PROPOSAL COM(2016)593 distribution, communication to the public or making available of out-ofcommerce works or other subject-matter permanently in the collection of the institution, such a nonexclusive 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 organisation, provided that: (a) the collective management organisation is, on the basis of mandates from rightholders, broadly representative of rightholders in the category of works or other subject- EP TEXT distribution, communication to the public or making available of out-ofcommerce works or other subject-matter permanently in the collection of the institution, such a nonexclusive 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 organisation, provided that: (a) the collective management organisation is, on the basis of mandates from rightholders, broadly representative of rightholders in the category of works or other subject- ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION heritage institution for the reproduction, distribution, communication to the public or making available to the public of out-of-commerce works or other subject-matter permanently in the collection of the institution, irrespective of whether all rightholders covered by the licence have mandated the collective management organisation, provided that: [provisionally agreed at Trilogue 26/11/2018] GREEN 200 (a) the collective management organisation is, on the basis of mandates from rightholders, sufficiently representative of rightholders BM/ EN purposes with a cultural heritage institution for the digitisationreproduction, distribution, communication to the public or making available to the public of out-of-commerce works or other subject-matter permanently in the collection of the institution, such a nonexclusive licence may be extended or presumed to apply to rightholders of the same category as those irrespective of whether all rightholders covered by the licence who are not represented byhave mandated the collective management organisation, provided that: (a) the collective management organisation is, on the basis of mandates from rightholders, broadlysufficiently representative of rightholders in the LIMITE 162. 163. 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT (b) equal treatment is guaranteed to all rightholders in relation to the terms of the licence; matter and of the rights which are the subject of the licence; Art. 7, para 1, point (b) (b) equal treatment is guaranteed to all rightholders in relation to the terms of the licence; (c) all rightholders may at any time object to their works or other subjectmatter being deemed to be out of commerce and exclude the application of the licence to their works or other subject-matter. matter and of the rights which are the subject of the licence; Art. 7, para 1, point (c) (c) all rightholders may at any time object to their works or other subjectmatter being deemed to be out of commerce and exclude the application of the licence to their works or other subject-matter. ECOMP 3.B. COUNCIL TEXT doc. 9134/18 categoryrelevant type of works or other subjectmatter and of the rights which are the subject of the licence; (b) equal treatment is guaranteed to all rightholders in relation to the terms of the licence; POSSIBLE COMPROMISE SOLUTION in the relevant type of works or other subject-matter and of the rights which are the subject of the licence; [provisionaly agreed at Trilogue 26/11/2018] (b) equal treatment is guaranteed to all rightholders in relation to the terms of the licence. GREEN [This point is moved to new paragraph 1b below – row 167] 201 [provisionaly agreed at Trilogue 26/11/2018] BM/ EN c) all rightholders may at any time object toexclude the possibility for collective management organisations to license their works or other subject-matter being deemed to be out of commerce and in accordance with this Article, either in general or in specific cases, or exclude the application of theany licence granted in accordance with this Article to their works or other subject-matter. LIMITE 164. 165. 5138/19 ANNEX Location Art. 7, para 1a Art. 7, para 1a, point (a) COMMISSION PROPOSAL COM(2016)593 EP TEXT 1a. 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, permitting cultural heritage institutions to make copies available online of out-ofcommerce works that are located permanently in their collections for not-for-profit purposes, provided that: (a) the name of the author or any other identifiable rightholder is ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 202 doc. 9134/18 GREEN 1a. 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), (b), (d) and (e) 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 cultural heritage institutions to make available out-of-commerce works or other subject-matter that are permanently in their collections for noncommercial purposes, provided that: [Council provisionally agreed at trilogue, provided that Council Article 9a is adopted] GREEN BM/ EN (a) the name of the author or any other identifiable LIMITE 166. 167. 5138/19 ANNEX Location Art. 7, para 1a, point (b) Art. 7, para 1b COMMISSION PROPOSAL COM(2016)593 EP TEXT indicated, unless this turns out to be impossible; (b) all rightholders may at any time object to their works or other subjectmatter being deemed to be out of commerce and exclude the application of the exception to their works or other subject-matter. 1b. Member States shall provide that the exception adopted pursuant to paragraph 1a does not apply in sectors or for types of works where appropriate ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 203 doc. 9134/18 rightholder is indicated, unless this turns out to be impossible; [provisionally agreed at trilogue 03/12/2018;see also comment in row 164] GREEN (b) such works or other subject-matter are made available on non-commercial websites. [provisionally agreed at trilogue 03/12/2018] [Text of EP covered in new paragraph 1b below – row 167;see also comment in row 164] GREEN BM/ EN 1b. Member States shall provide that the exception or limitation referred to in the previous paragraph only LIMITE 168. 5138/19 ANNEX Location Art. 7, para 2, sub-para 1 COMMISSION PROPOSAL COM(2016)593 2. A work or other subject-matter shall be deemed to be out of EP TEXT licensing-based solutions, including but not limited to solutions provided for in paragraph 1, are available. Member States shall, in consultation with authors, other rightholders, collective management organisations and cultural heritage institutions, determine the availability of extended collective licensing-based solutions for specific sectors or types of works. 2. A work or other subject-matter shall be deemed to be out of ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION applies to types of works or other subject-matter for which no collective management organisation exists that fulfils the conditions referred to in point (a) of paragraph 1. 1c. Member States shall provide that all rightholders may at any time, easily and effectively, exclude their works or other subject-matter from the licensing mechanism referred to in paragraph 1 or from uses under the exception or limitation referred to in paragraph 1a, either in general or in specific cases, including after the conclusion of a licence or the beginning of the use concerned. [provisionaly agreed at Trilogue 26/11/2018;see also comment in row 164] GREEN A work or other subject- 204 2. BM/ EN 2. A work or other subject-matter shall be deemed to be out-of- LIMITE 169. 5138/19 ANNEX Location Art. 7, para 2, sub-para 2 COMMISSION PROPOSAL COM(2016)593 EP TEXT Member States shall, in consultation with rightholders, collective management organisations and cultural heritage institutions, ensure that the requirements used to determine whether works and other subject-matter can [See definition of out-ofcommerce work in Parliament’s Article 2(4a) (rows 122-126)] commerce when the whole commerce when the whole work or other subject-matter, work or other subject-matter, in all its translations, in all its translations, versions and manifestations, versions and manifestations, is not available to the public is not available to the public through customary channels through customary channels of commerce and cannot be of commerce and cannot be reasonably expected to reasonably expected to become so. become so. Member States may provide a cut-off date in relation to determining whether a work previously commercialised is deemed to be out of commerce. Member States shall, in consultation with rightholders, collective management organisations and cultural heritage institutions, ensure that the requirements used to determine whether works and other subject-matter can ECOMP 3.B. COUNCIL TEXT doc. 9134/18 commerce when it can be presumed in good faith that 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. after a reasonable effort is made to determine such availability. POSSIBLE COMPROMISE SOLUTION matter shall be deemed to be out-of-commerce when it can be presumed in good faith that the whole work or other subject-matter is not available to the public through customary channels of commerce after a reasonable effort is made to determine such availability. [provisionally agreed at Trilogue 26/11/2018] GREEN 205 Member States may provide for specific requirements, such as a cut-off date, to determine whether works and other subject-matter can be licensed in accordance with paragraph 1 or used under the BM/ EN Member States shall, in consultation with rightholders, collective management organisations and cultural heritage institutions, ensure that the may provide for specific requirements used to determine whether works LIMITE Location COMMISSION PROPOSAL COM(2016)593 be licensed in accordance with paragraph 1 do not extend beyond what is necessary and reasonable and do not preclude the possibility to determine the out-of-commerce status of a collection as a whole, when it is reasonable to presume that all works or other subject-matter in the collection are out of commerce. EP TEXT COUNCIL TEXT doc. 9134/18 be licensed in accordance with paragraph 1 or used in accordance with paragraph 1a do not extend beyond what is necessary and reasonable and do not preclude the possibility to determine the out-ofcommerce status of a collection as a whole, when it is reasonable to presume that all works or other subject-matter in the collection are out of commerce. 8a(2)] POSSIBLE COMPROMISE SOLUTION exception or limitation referred to in paragraph 1a. Such requirements shall not extend beyond what is necessary and reasonable, and shall not preclude the possibility to determine the out-of-commerce status of a set of works or other subjectmatter as a whole, when it is reasonable to presume that all works or other subject-matter are out-of commerce. [provisionaly agreed at Trilogue 26/11/2018;see also comment in row 164] 3. [Moved to new Article 8a(2)] 206 and other subject-matter can be licensed in accordance with paragraph 1 do. Such requirements shall not extend beyond what is necessary and reasonable, and doshall not preclude the possibility to determine the out-of-commerce status of a collection as set of works or other subject-matter as a whole, when it is reasonable to presume that all works or other subject-matter in the collection are out -of commerce. 3. Member States shall provide that appropriate publicity measures are taken regarding: BM/ EN 3. [Moved to new Article 170. Art. 7, para 3, introductory part (a) the deeming of works (a) the deeming of works or or other subject-matter as out other subject-matter as out of of commerce; commerce; LIMITE 3. Member States shall provide that appropriate publicity measures are taken regarding: 171. Art. 7, para 3, point (a) (b) ECOMP 3.B. (b) the any licence, and in Art. 7, para the licence, and in 172. 5138/19 ANNEX 173. 174. 175. 5138/19 ANNEX EP TEXT COUNCIL TEXT particular its application to unrepresented rightholders; Location 3, point (b) particular its application to unrepresented rightholders; (c) the possibility of rightholders to object, referred to in point (c) of paragraph 1 and point (b) of paragraph 1a; doc. 9134/18 Art. 7, para 3, point (c) (c) the possibility of rightholders to object, referred to in point (c) of paragraph 1; including during a reasonable period of time at least six months before the works or other subjectmatter are digitised, distributed, communicated to the public or made available. COMMISSION PROPOSAL COM(2016)593 Art. 7, para 3, closing phrase including during a reasonable period of time before the works or other subject-matter are digitised, distributed, communicated to the public or made available. POSSIBLE COMPROMISE SOLUTION GREEN 207 Art. 7, para 4, introductory part / Art. 7, para 4 (Council) BM/ EN 4. Member States shall ensure that the licences referred to in paragraph 1 are sought from a collective management organisation that is representative for the Member State where the cultural heritage institution is established. LIMITE 4. Member States shall 4. Member States shall 4. Member States shall ensure that the licences ensure that the licences ensure that the licences referred to in paragraph 1 are referred to in paragraph 1 are referred to in paragraph 1 sought from a collective sought from a collective are sought from a collective management organisation management organisation management organisation that is representative for the that is representative for the that is representative for the Member State where: Member State where: Member State where: the cultural heritage institution is established. ECOMP 3.B. 176. 177. 5138/19 ANNEX Location Art. 7, para 5, introductory part (Council) Art. 7, para 4, point (a) (EP)/ Art. 7, para 5, point (a) (Council) COMMISSION PROPOSAL COM(2016)593 (a) the works or phonograms were first published or, in the absence of publication, where they were first broadcast, except for cinematographic and audiovisual works; EP TEXT (a) the works or phonograms were first published or, in the absence of publication, where they were first broadcast, except for cinematographic and audiovisual works; ECOMP 3.B. COUNCIL TEXT doc. 9134/18 5. This Article shall not apply to sets of out-ofcommerce if, following the reasonable effort to determine commercial availability, there is evidence that such sets predominantly consist of: POSSIBLE COMPROMISE SOLUTION [provisionally agreed at Trilogue 26/11/2018] GREEN 5. This Article shall not apply to sets of out-ofcommerce works if, on the basis of the reasonable effort referred to in paragraph 2, there is evidence that such sets predominantly consist of: [provisionally agreed at Trilogue 26/11/2018] GREEN (a) works or other subjectmatter first published or, in the absence of publication, first broadcast in a third country, except for cinematographic or audiovisual works; 208 (a) the works or other subject-matter phonograms were first published or, in the absence of publication, where they were first broadcast in a third country, except for cinematographic andor audiovisual works; BM/ EN [provisionally agreed at Trilogue 26/11/2018] LIMITE 178. 179. 180. 5138/19 ANNEX Location Art. 7, para 4, point (b) (EP)/ Art. 7, para 5, point (b) (Council) Art. 7, para 4, point (c) (EP) /Art. 7, para 5, point (c) (Council) Art. 7, para 5 (EP)/ Art. 7, para 5, COMMISSION PROPOSAL COM(2016)593 (b) the producers of the works have their headquarters or habitual residence, for cinematographic and audiovisual works; or (c) the cultural heritage institution is established, when a Member State or a third country could not be determined, after reasonable efforts, according to points (a) and (b). 5. Paragraphs 1, 2 and 3 shall not apply to the works or other subject-matter of EP TEXT COUNCIL TEXT (b) the producers of the works have their headquarters or habitual residence, for cinematographic and audiovisual works; or (b) cinematographic or audiovisual works, the producers of the workswhich have their headquarters or habitual residence, for cinematographic and audiovisual works in a third country; or doc. 9134/18 (c) the cultural heritage institution is established, when a Member State or a third country could not be determined, after reasonable efforts, according to points (a) and (b). POSSIBLE COMPROMISE SOLUTION GREEN (b) cinematographic or audiovisual works, the producers of which have their headquarters or habitual residence in a third country; or [provisionally agreed at Trilogue 26/11/2018] GREEN c) works or other subjectmatter of third country nationals when a Member State or a third country could not be determined, after a reasonable effort, according to points (a) and (b); [provisionally agreed at Trilogue 26/11/2018] GREEN BM/ EN 209 unless the collective LIMITE 5. Paragraphs 1, 2 and 3 shall not apply tounless the works or other subject- c) the cultural heritage institution is established, works or other subjectmatter of third country nationals when a Member State or a third country could not be determined, after a reasonable effortseffort, according to points (a) and (b).); 5. Paragraphs 1, 2 and 3 shall not apply to the works or other subject-matter of ECOMP 3.B. Location COMMISSION PROPOSAL COM(2016)593 Art. 8, title Article 8 Cross-border uses third country nationals except where points (a) and (b) of paragraph 4 apply. 181. Art. 8, para 1 closing phrase (Council) 182. 1. Works or other subject-matter covered by a licence granted in accordance with Article 7 may be used by the cultural heritage institution in accordance with the terms of the licence in all Member States. 5138/19 ANNEX COUNCIL TEXT mattercollective management organisation is sufficiently representative of rightholders of that third country nationals except where pointsin the meaning of point (a) and (b) of paragraph 4 apply1. EP TEXT third country nationals except where points (a) and (b) of paragraph 4 apply. Article 8 Cross-border uses doc. 9134/18 Article 8 Cross-border uses POSSIBLE COMPROMISE SOLUTION management organisation is sufficiently representative of rightholders of that third country in the meaning of point (a) of paragraph 1. [provisionally agreed at Trilogue 26/11/2018] Article 8 Cross-border uses GREEN 1. A licence granted in accordance with Article 7 may allow the use of out-ofcommerce works or other subject-matter by the cultural heritage institution in any Member State. 210 1. Works Out-ofcommerce works or other subject-matter covered by a licence granted in accordance with Article 7 may be used by the cultural heritage institution in accordance with the terms of the licence that Article in all Member States. BM/ EN 2. The uses of works and other subject-matter under the exception or limitation referred to in Article 7(1a) shall be deemed to occur LIMITE 1. Works or other subject-matter covered by aA licence granted in accordance with Article 7 may be used allow the use of out-of-commerce works or other subject-matter by the cultural heritage institution in accordance with the terms of the licence in allany Member StatesState. ECOMP 3.B. 183. 5138/19 ANNEX Location Art. 8, para 2 COMMISSION PROPOSAL COM(2016)593 2. Member States shall ensure that information that allows the identification of the works or other subjectmatter covered by a licence granted in accordance with Article 7 and information about the possibility of rightholders to object referred to in Article 7(1)(c) are made publicly accessible in a single online portal for at least six months before the works or other subjectmatter are digitised, distributed, communicated to the public or made available in Member States other than the one where the licence is granted, and for the whole EP TEXT COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION solely in the Member State where the cultural heritage institution undertaking that use is established. [provisionally agreed at Trilogue 26/11/2018; see also comment in row 164] GREEN 2. [Moved to new Article 8a(1)] BM/ EN 211 [provisionally agreed at Trilogue 26/11/2018] LIMITE 2. Member States shall 2. [Moved to new Article ensure that information that 8a(1)] allows the identification of the works or other subjectmatter covered by a licence granted in accordance with Article 7 and information about the possibility of rightholders to object referred to in point (c) of Article 7(1) and point (b) of Article 7(1a) are made publicly permanently, easily and effectively accessible in a public single online portal for at least six months before the works or other subjectmatter are digitised, distributed, communicated to the public or made available ECOMP 3.B. 184. 185. 186. 5138/19 ANNEX Location Art. 8, para 3 Art. 8a, title Art. 8a, para 1, sub-para 1 in Member States other than the one where the licence is granted, or in the cases covered by Article 7(1a), where the cultural heritage institution is established and for the whole duration of the licence. EP TEXT duration of the licence. 3. The portal referred to in paragraph 2 shall be established and managed by the European Union Intellectual Property Office in accordance with Regulation (EU) No 386/2012. COMMISSION PROPOSAL COM(2016)593 3. The portal referred to in paragraph 2 shall be established and managed by the European Union Intellectual Property Office in accordance with Regulation (EU) No 386/2012. ECOMP 3.B. COUNCIL TEXT doc. 9134/18 3. [Moved to new Article 8a(1) second subparagraph] Article 8a Publicity measures POSSIBLE COMPROMISE SOLUTION GREEN 3. [Moved to new Article 8a(1) second subparagraph] [provisionally agreed at Trilogue 26/11/2018] GREEN Article 8a Publicity measures [provisionally agreed at Trilogue 26/11/2018] GREEN Member States shall 212 1. BM/ EN 1. Member States shall ensure that information that allowsfor the purposes of LIMITE 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 213 ensure that information from cultural heritage institutions, collective management organisations or relevant public authorities for the purposes of the identification of the out-of-commerce works or other subject-matter covered by a licence granted in accordance with Article 7(1) or used under the exception or limitation referred to in Article 7(1a) as well as information about the possibilities of rightholders referred to in Article 7(1c), and, as soon as it is available and where relevant, information on the parties to the licence, the covered territories and the allowed uses is made permanently, easily and effectively accessible in a public single online portal from at least six months before the works or other subjectmatter are distributed, communicated to the public or BM/ EN the identification of the outof-commerce works or other subject-matter covered by a licence granted in accordance with Article 7 andas well as information about the possibilitypossibilities of rightholders to object referred to in Article 7(1)(c) are), and, as soon as it is available, information on the parties to the licence, the covered territories and the allowed uses is made publicly accessible in a single online portal forfrom at least six months before the works or other subjectmatter are digitised, distributed, communicated to the public or made available in Member States other than the one where the licence is granted, and for the whole duration ofto the public in accordance with the licence. LIMITE 187. 188. 5138/19 ANNEX Location Art. 8a, para 1, sub-para 2 Art. 8a, para COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 [Article 8(2) of the COM proposal, amended] 3. The portal referred to in paragraph 2 shall be established and managed by the European Union Intellectual Property Office in accordance with Regulation (EU) No 386/2012. [Article 8(3) of the COM proposal, amended] POSSIBLE COMPROMISE SOLUTION made available to the public in accordance with the licence or under the exception or limitation. [Article 8(2) of the COM proposal, amended] [provisionally agreed at Trilogue 26/11/2018, including clarification in recital (27) that the licence may cover one, several or all Member States; see also comment in row 164] GREEN The portal shall be established and managed by the European Union Intellectual Property Office in accordance with Regulation (EU) No 386/2012. [Article 8(3) of the COM proposal, amended] [provisionally agreed at Trilogue 26/11/2018] 214 GREEN BM/ EN 2. Member States shall provide that, if necessary LIMITE 5138/19 ANNEX 2 Location COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION for the general awareness 2. Member States shall of rightholders, further provide that, if necessary for appropriate publicity the general awareness of measures are taken rightholders, further regarding: (a) the deeming appropriate publicity measures of works or other subjectare taken regarding the matter as out of commerce; possibility for collective (b) the licence, and in management organisations to particular its application to license works or other subjectunrepresented rightholders; matter in accordance with the possibility for collective Article 7, the licences granted, management organisations the uses under the exception to license works or other or limitation referred to in subject-matter in Article 7(1a) and the accordance with Article 7, possibilities of rightholders the licences granted and (c) referred to in Article 7(1c). the possibilities to object of rightholders referred to in The additional appropriate point (c) of paragraph 1 publicity measures shall be Article 7(1)(c) ;. taken in the Member State where the licence is sought in Including during a accordance to Article 7(1) or, reasonable period of time for uses under the exception before the works or other or limitation referred to in subject-matter are digitised, Article 7(1a), where the distributed, communicated to cultural heritage institution the public or made available. is established. If there is evidence, such as the origin of BM/ EN 215 The additional appropriate LIMITE 189. Art 9 Art. 9, title Location 190. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 Article 9 Stakeholder dialogue EP TEXT Article 9 Stakeholder dialogue COUNCIL TEXT doc. 9134/18 publicity measures shall be taken in the Member State where the licence is sought. If there is evidence, such as the origin of the works or other subject-matter, to suggest that the awareness of rightholders could be more efficiently raised in other Member States or third countries, such publicity measures shall also cover those Member States and third countries. [Article 7(3) of the COM proposal, amended] Article 9 Stakeholder dialogue POSSIBLE COMPROMISE SOLUTION the works or other subjectmatter, to suggest that the awareness of rightholders could be more efficiently raised in other Member States or third countries, such publicity measures shall also cover those Member States and third countries. [Article 7(3) of the COM proposal, amended] [provisionally agreed at Trilogue 26/11/2018; see also comment in row 164] Article 9 Stakeholder dialogue GREEN BM/ EN 216 Member States shall consult LIMITE Member States shall ensure a Member States shall ensure a Member States shall ensure consult rightholders, regular dialogue between regular dialogue between collective management representative users' and representative users' and organisations and cultural ECOMP 3.B. 191. 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION rightholders, collective management organisations and cultural heritage institutions in each sector before establishing specific requirements pursuant to Article 7(2), and encourage a regular dialogue between representative users' and rightholders' organisations, including collective management organisations, and any other relevant stakeholder organisations, on a sector-specific basis, to foster the relevance and usability of the licensing mechanisms referred to in Article 7(1) and to ensure the effectiveness of the safeguards for rightholders referred to in this Chapter. [provisionally agreed at Trilogue 26/11/2018] BM/ EN 217 CHAPTER 1a LIMITE rightholders' organisations, rightholders' organisations, heritage institutions in and any other relevant and any other relevant each sector before stakeholder organisations, to, stakeholder organisations, to, establishing specific on a sector-specific basis, on a sector-specific basis, requirements pursuant to foster the relevance and foster the relevance and Article 7(2), and encourage usability of the licensing usability of the licensing a regular dialogue between mechanisms referred to in mechanisms referred to in representative users' and Article 7(1), ensure the Article 7(1) and the rightholders' organisations, effectiveness of the exception referred to in including collective safeguards for rightholders Article 7(1a), ensure the management organisations, referred to in this Chapter, effectiveness of the and any other relevant notably as regards publicity safeguards for rightholders stakeholder organisations, to, measures, and, where referred to in this Chapter, on a sector-specific basis, to applicable, assist in the notably as regards publicity foster the relevance and establishment of the measures, and, where usability of the licensing requirements referred to in applicable, assist in the mechanisms referred to in the second subparagraph of establishment of the Article 7(1),) and to ensure Article 7(2). requirements referred to in the effectiveness of the the second subparagraph of safeguards for rightholders Article 7(2). referred to in this Chapter, notably as regards publicity measures, and, where applicable, assist in the establishment of the requirements referred to in the second subparagraph of Article 7(2). CHAPTER 1a ECOMP 3.B. 192. 193. 5138/19 ANNEX Location Art. 9a, title Art. 9a, para 1 COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 Measures to facilitate collective licensing Article 9a Collective licensing with an extended effect POSSIBLE COMPROMISE SOLUTION Measures to facilitate collective licensing Article 9a Collective licensing with an extended effect [Article 9a provisionally agreed at trilogue 03/12/2018; final wording as set out in rows 193 - 202 (i.e. with technical clarifications from COM and related recitals (28a)-(28h), as set out in rows 56 - 63, to be confirmed by trilogue] 218 1. Member States may provide, as far as the use within their national territory is concerned and subject to safeguards provided for in this Article, that when a collective management organisation, to which is subject to the national rules implementing Article 2 of Directive 2014/26/EU, applies and which , in accordance with its BM/ EN 1. Member States may provide, as far as the use within their national territory is concerned and subject to safeguards provided for in this Article, that when a collective management organisation, in accordance with its mandates from rightholders, enters into a licensing agreement for the LIMITE 194. 5138/19 ANNEX Location Art. 9a, para 2 COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 exploitation of works or other subject-matter such an agreement may be extended to apply to the rights of rightholders who have not authorised the organisation to represent them by way of assignment, licence or any other contractual arrangement; or, with respect to such an agreement, the organisation has a legal mandate or is presumed to represent rightholders who have not authorised the organisation accordingly. POSSIBLE COMPROMISE SOLUTION mandates from rightholders, enters into a licensing agreement for the exploitation of works or other subjectmatter such an agreement may be extended to apply to the rights of rightholders who have not authorised the that collective management organisation to represent them by way of assignment, licence or any other contractual arrangement; or, with respect to such an agreement, the organisation has a legal mandate or is presumed to represent rightholders who have not authorised the organisation accordingly. [see comment in rows 192 and 164] 219 2. Member States shall ensure that the licensing mechanism referred to in paragraph 1 is only applied BM/ EN 2. Member States shall ensure that the licensing mechanism referred to in paragraph 1 is only applied LIMITE 195. 196. 5138/19 ANNEX Location Art. 9a, para 3 Art. 9a, para 3, point (a) COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 within well-defined areas of use where obtaining authorisations from rightholders on an individual basis is typically onerous and impractical to a degree that makes the required licensing transaction unlikely due to the nature of the use or of the types of works or other subject-matter concerned and that such mechanism safeguards the legitimate interests of rightholders. 3. The safeguards referred to in paragraph 1 must ensure that: POSSIBLE COMPROMISE SOLUTION within well-defined areas of use where obtaining authorisations from rightholders on an individual basis is typically onerous and impractical to a degree that makes the required licensing transaction unlikely due to the nature of the use or of the types of works or other subject-matter concerned and that such licensing mechanism safeguards the legitimate interests of rightholders . [see comment in rows 192 and 164] 3. The safeguards referred to in paragraph 1 must ensureshall provide that: [see comment in rows 192 and 164] 220 (a) the collective right management organisation is, on the basis of mandates from rightholders, sufficiently BM/ EN (a) the organisation is, on the basis of mandates from rightholders, sufficiently representative LIMITE 197. 198. 5138/19 ANNEX Location Art. 9a, para 3, point (b) Art. 9a, para 3, point (c) COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 of rightholders in the relevant type of works or other subject-matter and of the rights which are the subject of the licence for the relevant Member State; (b) equal treatment is guaranteed to all rightholders in relation to the terms of the licence; POSSIBLE COMPROMISE SOLUTION representative of rightholders in the relevant type of works or other subject-matter and of the rights which are the subject of the licence for the relevant Member State; [see comment in rows 192 and 164] (b) equal treatment is guaranteed to all rightholders, including in relation to the terms of the licence; [see comment in rows 192 and 164] (c) rightholders who have not authorised the organisation operating the licence may at any time easily and effectively exclude their works or other subject-matter from the licensing mechanism established in accordance with this Article; 221 (c) rightholders who have not authorised the organisation operating the licence may at any time easily and effectively exclude their works or other subject-matter from the licensing mechanism established in accordance with this Article; BM/ EN [see comment in rows 192 and LIMITE 199. 200. 5138/19 ANNEX Location Art. 9a, para 3, point (d) Art. 9a, para COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 (d) appropriate publicity measures are taken to raise the awareness of rightholders regarding the possibility for organisations to license works or other subjectmatter and the licensing taking place in accordance with this Article, and the possibilities of rightholders referred to in point (c) starting from a reasonable period before the works or other subject-matter are used under the licence. Publicity measures should be effective without the need to inform each rightholder individually. POSSIBLE COMPROMISE SOLUTION 164] (d) appropriate publicity measures are taken to raise the awareness of inform rightholders regarding the possibility for the collective management organisations to license works or other subjectmatter and the licensing taking place in accordance with this Article, and the possibilities of rightholders referred to in point (c) starting from a reasonable period before the works or other subject-matter are used under the licence. Publicity measures should be effective without the need to inform each rightholder individually. [see comment in rows 192 and 164] 222 4. The rules provided for in this Article are without BM/ EN 4. The rules provided for in this Article are LIMITE 201. 5138/19 ANNEX 4 Location Art. 9a, para 5 COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 without prejudice to the application of collective licensing mechanisms with an extended effect in conformity with other provisions of Union law, including those which allow exceptions or limitations, and shall not apply to mandatory collective management of rights. POSSIBLE COMPROMISE SOLUTION prejudice does not affect to the application of collective licensing mechanisms with an extended effect in conformity with other existing provisions of Union law, including those provisions which allow exceptions or limitations. This article shall not apply to mandatory collective management of rights. Article 7 of Directive 2014/26/EU shall apply to the licensing mechanism provided for in this Article. [see comment in row 192 and 164] 223 5. Where the law of a Member State provides for a licensing mechanism in accordance with this Article, the Member State concerned shall inform the Commission about the scope of that law, purposes and types of licences BM/ EN 5. Where the law of a Member State provides for a licensing mechanism in accordance with this Article, the Member State concerned shall inform the Commission about the scope of that law, purposes LIMITE 202. 5138/19 ANNEX Location Art. 9a, para 6 COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 and types of licences that may be introduced under that law as well as contact details for organisations issuing licences in accordance with the mechanism in paragraph 1. The Commission shall publish this information. POSSIBLE COMPROMISE SOLUTION that may be introduced under that law as well as contact details for organisations issuing licences in accordance with the mechanism in paragraph 1, and the way in which information on the licensing and the possibilities of rightholders referred to in point (c) of paragraph 3 can be obtained. The Commission shall publish this information. [see comment in row 192 and 164] 224 6. Based on the information received pursuant to paragraph 5 and on the discussions in the contact committee referred to in Article 12(3) of Directive 2001/29/EC, the Commission shall, by 10 April 2021, submit to the European Parliament and to the Council a report on the use of such mechanisms referred to in BM/ EN 6. Based on the information received pursuant to paragraph 5 and on the discussions in the contact committee referred to in Article 12(3) of Directive 2001/29/EC, the Commission shall, by 31 December 2020, submit to the European Parliament and to the LIMITE 203. 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 CHAPTER 2 Access to and availability of audiovisual works on videoon-demand platforms EP TEXT CHAPTER 2 Access to and availability of audiovisual works on videoon-demand platforms ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION Council a report on the use paragraph 1 in the EU, and their impact on licensing and of such mechanisms referred to in paragraph 1 rightholders, including right in the EU and their impact holders who are not on licensing and members and/or who are rightholders. The nationals of, or resident in, Commission’s report shall another Member State, their be accompanied, if effectiveness to facilitate the appropriate, by a dissemination of cultural legislative proposal, content, and the impact on including as regards the internal market, publicity measures, and, including the cross- border where applicable, assist in provision of services and the establishment of the competition. The requirements referred to in Commission’s report shall be the second subparagraph of accompanied, if appropriate, Article 7(2).the crossby a legislative proposal, including as regards the crossborder effect of such border effect of such national national schemes. schemes. [see comment in row 192 and 164] CHAPTER 2 225 Access to and availability of audiovisual works on video- BM/ EN CHAPTER 2 Access to and availability of audiovisual works on videoon-demand platforms LIMITE Art. 10, title Article 10 Negotiation mechanism Location 204. Art. 10, subpara 1 COMMISSION PROPOSAL COM(2016)593 205. 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. 5138/19 ANNEX Article 10 Negotiation mechanism EP TEXT 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. That body 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. ECOMP 3.B. COUNCIL TEXT doc. 9134/18 Article 10 Negotiation mechanism POSSIBLE COMPROMISE SOLUTION on-demand platforms Article 10 Negotiation mechanism GREEN 226 Member States shall ensure that parties facing difficulties related to the licensing of rights when seeking to conclude an agreement for the purpose of making available audiovisual works on videoon-demand services, may rely on the assistance of an impartial body or of mediators. The impartial body created or designated by the Member State for the purpose of this Article or mediators shall provide assistance to the parties with their negotiations and help them reach agreements, including, where appropriate, by submitting proposals to the parties. BM/ EN Member States shall ensure that where parties wishingfacing difficulties related to the licensing of rights when seeking 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, theyservices, may rely on the assistance of an impartial body with relevant experience. Thator of mediators. The body or mediators shall provide assistance to the parties with negotiationtheir negotiations and help them reach agreements, including, where appropriate, by submitting proposals to the parties. LIMITE 206. 207. 5138/19 ANNEX Location Art. 10, subpara 2 Art. 10, subpara 3 COMMISSION PROPOSAL COM(2016)593 No later than [date mentioned in Article 21(1)] Member States shall notify to the Commission the body referred to in paragraph 1. EP TEXT COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION [provisionally agreed at Trilogue 26/11/2018] GREEN Member States shall notify to the Commission the body or mediators referred to in paragraph 1 no later than [date mentioned in Article 21(1)]. In cases where Member States have chosen to rely on mediation, the notification to the Commission shall at least include, when available, the source where relevant information on the entrusted mediators can be found. [provisionally agreed at Trilogue 26/11/2018] GREEN BM/ EN 227 [provisionally agreed at LIMITE No later than [date No later than [date mentioned in Article 21(1)] mentioned in Article 21(1)] Member States shall notify Member States shall notify to inform the Commission of to the Commission the body the body referred to in or mediators referred to in paragraph 1. they create or paragraph 1 no later than designate pursuant to the [date mentioned in Article first paragraph. 21(1)]. In cases where Member States have chosen to rely on mediation, the notification to the Commission shall at least include, when available, the source where relevant information on the entrusted mediators can be found. To encourage the availability of audiovisual works on video-on-demand ECOMP 3.B. 208. 209. 210. 5138/19 ANNEX Location Art. 10a, title Art. 10a, para COMMISSION PROPOSAL COM(2016)593 EP TEXT Any electronic Article 10 a Union Legal Deposit CHAPTER 2a Access to Union publications platforms, Member States shall foster dialogue between representative organisations of authors, producers, video-ondemand platforms and other relevant stakeholders. 1. ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 228 doc. 9134/18 Trilogue on 26/11/2018 to insert part of the EP mandate of this row into a recital (not in Article) along the following lines: Member States should encourage dialogue between representative organisations, without it being an obligation for Member States] GREEN Deleted [it is the Presidency's understanding of the outcome of the trilogues on 26/11/2018 / 03/12/2018 that it was provisionally agreed that this provision would be removed from the Directive] GREEN Deleted [see comments in row 208] BM/ EN GREEN LIMITE 211. 212. 213. 5138/19 ANNEX 1 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. EP TEXT Art. 10a, para 2 2. The European Parliament Library shall be entitled to delivery, free of charge, of one copy of every publication referred to in paragraph 1. Location Art. 10a, para 3 3. The obligation set out in paragraph 1 shall apply to publishers, printers and importers of publications for the works they publish, print or import in the Union. COMMISSION PROPOSAL COM(2016)593 Art. 10a, para 4. From the day of the delivery to the European ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 229 doc. 9134/18 Deleted [see comments in row 208] GREEN Deleted [see comments in row 208] GREEN Deleted [see comments in row 208] BM/ EN GREEN LIMITE 214. 215. 5138/19 ANNEX Location EP TEXT 4 Parliament Library, the publications referred to in paragraph 1 shall become part of the European Parliament Library permanent collection. They shall be made available to users at the European Parliament Library’s premises exclusively for the purpose of research or study by accredited researchers and under the control of the European Parliament Library. COMMISSION PROPOSAL COM(2016)593 Art. 10a, para 5 TITLE IV MEASURES TO ACHIEVE A WELL-FUNCTIONING MARKETPLACE FOR 5. The Commission shall adopt acts to specify the modalities relating to the delivery to the European Parliament Library of publications referred to in paragraph 1. TITLE IV MEASURES TO ACHIEVE A WELL-FUNCTIONING MARKETPLACE FOR ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION TITLE IV MEASURES TO ACHIEVE A WELL-FUNCTIONING MARKETPLACE FOR 230 TITLE IV MEASURES TO ACHIEVE A WELL-FUNCTIONING MARKETPLACE FOR doc. 9134/18 Deleted [see comments in row 208] GREEN Deleted BM/ EN [see comments in row 208] LIMITE 216. 217. 218. 5138/19 ANNEX Location EP TEXT COUNCIL TEXT COPYRIGHT POSSIBLE COMPROMISE SOLUTION COPYRIGHT doc. 9134/18 COPYRIGHT COMMISSION PROPOSAL COM(2016)593 COPYRIGHT CHAPTER 1 Rights in publications Article 11 Protection of press publications concerning online uses [to be confirmed at trilogue] GREEN BM/ EN 231 1. Member States shall provide publishers of press publications established in a Member State with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the online use of their press publications by information society service providers. These rights shall not apply to private or noncommercial uses of press publications carried out by individual users. LIMITE 1. Member States shall provide publishers of press publications established in a Member State with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digitalonline use of their press publications by information society service providers. Article 11 Protection of press publications concerning digitalonline uses CHAPTER 1 Rights in publications Article 11 Protection of press publications concerning digital uses CHAPTER 1 Rights in publications Art. 11, title Article 11 Protection of press publications concerning digital uses CHAPTER 1 Rights in publications Art. 11, para 1 1. Member States shall provide publishers of press publications 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. 1. Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC so that they may obtain fair and proportionate remuneration for the digital use of their press publications by information society service providers. ECOMP 3.B. 219. 5138/19 ANNEX Location Art. 11, para 1, sub-para 2 COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION The protection granted under the first subparagraph shall not apply to acts of hyperlinking. [provisionally agreed at trilogue 03/12/2018; Recital to clarify that individual users that contribute to Wikipedia are not covered] RED 232 The rights referred to in the first subparagraph shall not apply in respect of uses of individual words or very short extracts of a press publication. BM/ EN The rights referred to in the first subparagraph shall not apply in respect of uses of insubstantial parts of a press publication. Member States shall be free to determine the insubstantial nature of parts of press publications taking into account whether these parts are the expression of the intellectual creation of their authors, or whether these parts are individual words or very short LIMITE 220. 221. 5138/19 ANNEX Location Art. 11, para 1a Art. 11, para 2 COMMISSION PROPOSAL COM(2016)593 EP TEXT 1a. The rights referred to in paragraph 1 shall not prevent legitimate private and non-commercial use of press publications by individual users. COUNCIL TEXT doc. 9134/18 excerpts, or both criteria. POSSIBLE COMPROMISE SOLUTION [integrated into paragraph 1, row 218; to be confirmed at trilogue] GREEN BM/ EN 233 2. The rights referred to in paragraph 1 shall leave intact and shall in no way affect any rights provided for in Union law to authors and other rightholders, in respect of the works and other subject-matter incorporated in a press publication. The rights referred to in paragraph 1 may not be invoked against those authors and other rightholders and, in particular, may not deprive them of their right to exploit their works and other subjectmatter independently from the press publication in which they are incorporated. LIMITE 2. The rights referred to 2. The rights referred to 2. The rights referred to in paragraph 1 shall leave in paragraph 1 shall leave in paragraph 1shall leave intact and shall in no way intact and shall in no way intact and shall in no way affect any rights provided for affect any rights provided for affect any rights provided for in Union law to authors and in Union law to authors and in Union law to authors and other rightholders, in respect other rightholders, in respect other rightholders, in respect of the works and other of the works and other of the works and other subject-matter incorporated subject-matter incorporated subject-matter incorporated in a press publication. in a press publication. Such in a press publication. Such SuchThe rights referred to rights may not be invoked rights may not be invoked in paragraph 1 may not be against those authors and against those authors and invoked against those other rightholders and, in other rightholders and, in authors and other particular, may not deprive particular, may not deprive them of their right to exploit them of their right to exploit rightholders and, in particular, may not deprive their works and other their works and other subject-matter independently subject-matter independently them of their right to exploit from the press publication in from the press publication in their works and other which they are incorporated. which they are incorporated. subject-matter independently from the press publication in which they are incorporated. ECOMP 3.B. 222. 223. 5138/19 ANNEX Location Art. 11, para 2, sub-para 2 Art. 11, para 2a COMMISSION PROPOSAL COM(2016)593 EP TEXT 2a. The rights referred to in paragraph 1 shall not extend to mere hyperlinks which are accompanied by ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION [provisionally agreed at trilogue 03/12/2018] GREEN When a work or other subjectmatter is incorporated in a press publication on the basis of a non-exclusive licence, the rights referred to in paragraph 1 may not be invoked to prohibit the use by other authorised users. The rights referred to in paragraph 1 may not be invoked to prohibit the use of works or other subject matter whose protection has expired. 234 When a work or other subject-matter is incorporated in a press publication on the basis of a non-exclusive licence, the rights referred to in paragraph 1 may not be invoked to prohibit the use by other authorised users. The rights referred to in paragraph 1 may not be invoked to prohibit the use of works or other subjectmatter whose protection has expired. [provisionally agreed at trilogue 03/12/2018] GREEN BM/ EN [integrated into paragraph 1, row 218, as provisionally LIMITE 224. 225. 5138/19 ANNEX Location Art. 11, para 3 Art. 11, para 4 COMMISSION PROPOSAL COM(2016)593 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 1. EP TEXT individual words. 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 1. 4. The rights referred to 4. The rights referred to in paragraph 1 shall expire in paragraph 1 shall expire 20 years after the publication 20 5 years after the of the press publication. This publication of the press term shall be calculated from publication. This term shall the first day of January of be calculated from the first the year following the date day of January of the year of publication. following the date of publication. The right referred to in paragraph 1 shall not apply with retroactive effect. ECOMP 3.B. COUNCIL TEXT doc. 9134/18 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 1. POSSIBLE COMPROMISE SOLUTION agreed at trilogue 03/12/2018] GREEN 3. Articles 5 to 8 of Directive 2001/29/EC and Directives 2012/28/EU and (EU) 2017/1564 shall apply mutatis mutandis in respect of the rights referred to in paragraph 1. [identical text] RED 235 4. The rights referred to in paragraph 1 shall expire 20 years1 year after the publication of the press publication. This term shall be calculated from the first day of January of the year following the date o publication. 4. The rights referred to in paragraph 1 shall expire 20 years [1 year] [2 years] [5 years] after the publication of the press publication. This term shall be calculated from the first day of January of the year following the date o publication. BM/ EN [term of protection to be further discussed at trilogue] LIMITE 226. 5138/19 ANNEX Location Art. 11, para 4a COMMISSION PROPOSAL COM(2016)593 EP TEXT 4a. 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 ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 236 doc. 9134/18 Paragraph 1 shall not apply to press publications first published before [entry into force of the Directive]. [last sentence provisionally agreed at trilogue 03/12/2018] RED 4a. Member States shall provide that authors of the works incorporated in a press publication receive an appropriate share of the additional revenues press publishers receive for the use of their press publications by information society service providers. BM/ EN [Remuneration of journalists (authors of the works contained in a press publication) to be discussed further at trilogue, possibly in LIMITE Location COUNCIL TEXT Article 12 Claims to fair compensation EP TEXT doc. 9134/18 Article 12 Claims to fair compensation COMMISSION PROPOSAL COM(2016)593 Article 12 Claims to fair compensation 227. Art, 12, title Art. 11, para 5 228. 5. Paragraph 1 shall not apply to press publications first published before [entry into force of the Directive]. 229. Art. 12, subpara 1 (EP)/ Art. 12, introductory part (Council)] [remaining part of this paragraph of the COM proposal was moved to new point (a) (see row 230)] POSSIBLE COMPROMISE SOLUTION context of the remuneration chapter] [see also recital (35) in row 73] GREEN [integrated into pargarph 4; see last sentence in row 225 as provisionally agreed at trilogue 03/12/2018] Article 12 Claims to fair compensation BM/ EN 237 Member States may provide that where an author has transferred or licensed a right to a publisher, such a transfer or a licence constitutes a sufficient legal basis for the publisher to be entitled to a share of the compensation for the uses of the work made under an exception or limitation to the transferred or GREEN LIMITE Member States may provide that where an author has transferred or licensed a right to a publisher, such a transfer or a licence constitutes a sufficient legal basis for the publisher to claimbe entitled to a share of : Member States with compensation-sharing systems between authors and publishers for exceptions and limitations may provide that where an author has transferred or licensed a right to a publisher, such a transfer or a licence constitutes a sufficient legal basis for the publisher to claim a share of the compensation for the ECOMP 3.B. Member States may provide that where an author has transferred or licensed a right to a publisher, such a transfer or a licence constitutes a sufficient legal basis for the publisher to claim a share of the compensation for the uses of the work made under an exception or limitation to the transferred or licensed right. 5138/19 ANNEX 230. 231. 232. 5138/19 ANNEX Location Art. 12, point (a) Art. 12, point (b) Art. 12, subpara 2 COMMISSION PROPOSAL COM(2016)593 EP TEXT uses of the work made under an exception or limitation to the transferred or licensed right, provided that an equivalent compensationsharing system was in operation in that Member State before 12 November 2015. The first paragraph shall be without prejudice to the ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION licensed right. [provisionally agreed at trilogue 03/12/2018] [to be read in conjunction with recital (36), as provisionally agreed at TM 04/12/2018, tbc at trilogue - see row 74] GREEN [integreated into row 229] [provisionally agreed at trilogue 03/12/2018] GREEN Deleted 238 (a) the compensation for the uses of the work made under an exception or limitation to the transferred or licensed right.; and [See Parliament’s subparagraph 1 of Article 12 (row 229)] (b) the remuneration for public lending provided for in Article 6(1) of Directive 2006/115/EC. [provisionally agreed at trilogue 03/12/2018] BM/ EN GREEN LIMITE 233. 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT arrangements in Member States concerning public lending rights, the management of rights not based on exceptions or limitations to copyright, such as extended collective licensing schemes, or concerning remuneration rights on the basis of national law. CHAPTER 1a Protection of sport event organizers ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 239 doc. 9134/18 The first paragraph shall be without prejudice to existing and future arrangements in Member States concerning public lending rights. [provisionally agreed at trilogue 03/12/2018] [to be read in conjunction with recital (36), as provisionally agreed at TM 04/12/2018 to be confirmed at trilogue - see row 74] GREEN Deleted BM/ EN [it is the Presidency's understanding of the outcome of the trilogues on 26/11/2018 / 03/12/2018 that it was provisionally agreed that this provision would be removed from the Directive] LIMITE 234. 235. 236. 237. 237A 5138/19 ANNEX Location Art. 12a, title Art. 12a Art. 13, title EP TEXT CHAPTER 2 Certain uses of protected content by online services COMMISSION PROPOSAL COM(2016)593 Article 12a Protection of sport event organizers CHAPTER 2 Certain uses of protected content by online services Member States shall provide sport event organizers with the rights provided for in Article 2 and Article 3 (2) of Directive 2001/29/EC and Article 7 of Directive 2006/115/EC. Article 13 Use of protected content by information society service providers storing and giving access to large amounts of works and other subjectmatter uploaded by their users Article 13 Use of protected content by information society online content sharing service providers storing and giving access to large amounts of works and other subjectmatter uploaded by their users GREEN ECOMP 3.B. COUNCIL TEXT doc. 9134/18 CHAPTER 2 Certain uses of protected content by online services POSSIBLE COMPROMISE SOLUTION GREEN Deleted [see comment in row 233] GREEN Deleted [see comment in row 233] CHAPTER 2 Certain uses of protected content by online services 240 3. Article 13 Use of protected content by information societyonline content sharing service providers storing BM/ EN [Article 13 to be further discussed at trilogue - see latest compromise text proposal in row 237A] LIMITE 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION Article 13 Use of protected content by online content sharing service providers [storing and giving access to large amounts of works and other subject-matter uploaded by their users] [text provisionally agreed at trilogue 13/12/2018] GREEN 1. Member States shall provide that an online content sharing service provider performs an act of communication to the public or an act of making available to the public for the purposes of this directive when it gives the public access to copyright protected works or other protected subject matter uploaded by its users. [text provisionally agreed at trilogue 13/12/2018] GREEN An online content sharing service provider shall therefore obtain an authorisation from the rightholders referred to in Article 3(1) and (2) of Directive 2001/29/EC, [for instance by concluding a licencing agreement], in order to communicate or make available to the public works or other subject matter. [text provisionally agreed at trilogue 13/12/2018] GREEN LIMITE BM/ EN 241 2. Member States shall provide that when an authorisation has been obtained, including via a licensing agreement, by an online content sharing service provider, this authorisation shall also cover acts carried out by users of the services falling within Article 3 of Directive 2001/29/EC when they are not acting on a commercial basis or their activity does not generate significant revenues. [provisionally agreed at trilogue 03/12/2018] ECOMP 3.B. 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION [“…not generate significant revenues” to be clarified in a recital: see proposal for recital in row 85] YELLOW 3. When an online content sharing service provider performs an act of communication to the public or an act of making available to the public, under the conditions established under this Directive, the limitation of liability established in Article 14(1) of Directive 2000/31/EC shall not apply to the situations covered by this Article. This shall not affect the application of Article 14(1) of Directive 2000/31/EC to these service providers for purposes falling outside the scope of this Directive. [text agreed at trilogue of 13/12/2018; to be further discussed whether this issue should be dealt with in the Article or in a recital] 4. If no authorisation is granted, online content sharing service providers shall be liable for unauthorised acts of communication to the public of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information or submitted a notice, unless the service providers demonstrate that they have: [(a) made best efforts to obtain an authorisation] (b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information LIMITE BM/ EN 242 (c) acted expeditiously, upon receiving a sufficiently substantiated notice by the rightholders, to remove from their websites or to disable access to the notified works and subject matters, and made best efforts to prevent their future uploads in accordance with paragraph (b). ECOMP 3.B. 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 4a. In determining whether the service has complied with its obligations under paragraph 4, in the light of the principle of proportionality the following shall, should, among others be taken into account: (a) the type, the audience and the size of the service [including whether they are provided by a microenterprise or a small-sized enterprise within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC (Role of SMEs to be discussed in relation to the scope – discussion is still open on this point see Article 2(5), row 125)]; (b) the number and type of works or other subject matter uploaded by the users of the service; (c) the availability of suitable and effective means technologies and their cost for service providers 5. The cooperation between online content service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users which do not infringe copyright and related rights, including where such works or subject matter are covered by an exception or limitation. LIMITE BM/ EN 243 Users shall be allowed to upload and make available content that they have generated themselves and which includes parts of, existing protected works and subject matter for purposes illustration, quotation, criticism, review, caricature, parody or pastiche. 6. (deleted/merger into paragraph 4) ECOMP 3.B. 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 GREEN EP TEXT COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 7. The application of the provisions in this article shall not lead to any general monitoring obligation as defined in Article 15 of Directive 2000/31/EC. Member States shall provide that online content sharing service providers shall provide rightholders, at their request, with adequate information on the functioning of their practices with regard to the cooperation referred to in paragraph 4 and, where licensing agreements are concluded between service providers and rightholders, information on the use of content covered by the agreements. [transparency/reporting obligations provisionally agreed at trilogue 03/12/2018] 8. Member States shall provide that an online sharing service provider puts in place an effective and expeditious complaint and redress mechanism that is available to users of the service in case of disputes over the removal of or blocking or disabling access to of works or other subject matter uploaded by them. LIMITE BM/ EN 244 When rightholders request to remove or disable access to their specific works or other subject matter, they shall duly justify the reasons for their requests. Complaints submitted under this mechanism shall be processed without undue delay and decisions to remove or disable access to uploaded content shall be subject to human review. Member States shall also ensure that out-of-court redress mechanisms are available for the settlement of disputes. Such mechanisms shall enable disputes to be settled impartially and shall not deprive the user of the legal protection afforded by national law, without prejudice to the rights of users to have recourse to efficient judicial remedies. users have access to an independent body for the resolution of disputes and that there are national procedural rules in place to allow users to assert their rights before a court. GREEN ECOMP 3.B. 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION This Directive shall in no way affect legitimate uses, such as uses under exceptions and limitations provided for in Union law, and shall not lead to any identification of individual users nor to the processing of their personal data, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation. YELLOW Online content sharing service providers shall inform the users about the possibility for them to use works and other subject matter under exceptions or limitations to copyright and related rights provided for in Union law. GREEN 9. As of [date of entry into force of this Directive] the Commission in cooperation with the Member States shall organise stakeholder dialogues to discuss best practices for the cooperation between the online content sharing service providers and rightholders. The Commission shall, in consultation with online content sharing service providers, rightholders, users associations and other relevant stakeholders and taking into account the results of the stakeholder dialogues, issue guidance on the application of Article 13 in particular regarding cooperation referred to in paragraph 4. When discussing the best practices, the need to balance the fundamental rights shall be taken into account. For the purpose of this stakeholders dialogue, users associations shall have access to adequate information from online content sharing service providers on the functioning of their practices with regard to in paragraph 4. LIMITE BM/ EN 245 [provisionally agreed at trilogue 03/12/2018; with exact wording provisionally agreed at TM, confirmed at trilogue of 13/12/2018] ECOMP 3.B. 238. 5138/19 ANNEX Art. 13, para 1 Location 1. Information society service providers that store and provide to the public access to large amounts of works or other subjectmatter 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 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 COMMISSION PROPOSAL COM(2016)593 EP TEXT 1. Without prejudice to Article 3(1) and (2) of Directive 2001/29/EC, online content sharing Information society service providers that store and provide perform an act of communication to the public access to large amounts of works or other subjectmatter uploaded by their users. They shall in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subjectmatter or to prevent the availability on their services of works or other subjectmatter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 246 [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] BM/ EN 1. Member States shall provide that an online content sharing service provider performs an act of communication to the public or an act of making available to the public when it gives the public access to copyright protected works or other protected subject matter uploaded by its users. An online content sharing service provider shall obtain an authorisation from the rightholders referred to in Article 3(1) and giving access to large amounts of(2) of Directive 2001/29/EC in order to communicate or make available to the public works or other subject matter. Where no such authorisation has been obtained, the service provider shall prevent the availability on its service of LIMITE 239. 5138/19 ANNEX Location Art. 13, para COMMISSION PROPOSAL COM(2016)593 deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subjectmatter. EP TEXT therefore conclude fair and 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 subjectmatter. licensing agreements with right holders. 2. Member States shall ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 247 those works and other subject-matter uploaded by matter, including through the application of measures referred to in paragraph 4. This subparagraph shall apply without prejudice to exceptions and limitations provided for in Union law. Member States shall provide that when an authorisation has been obtained, including via a licensing agreement, by an online content sharing service provider, this authorisation shall also cover acts of uploading by the users of the service falling within Article 3 of Directive 2001/29/EC when they are not acting on a commercial basis. [Last two sentences of COM proposal were moved to Council’s paragraphs 5 and 6 respectively] BM/ EN [Article 13 to be further LIMITE 240. 5138/19 ANNEX Location 2 (EP) Art. 13, para 2a (EP) COMMISSION PROPOSAL COM(2016)593 EP TEXT ensure that the Licensing agreements which are concluded by online content sharing service providers with right holders for the acts of communication referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1. , shall cover the liability for works uploaded by the users of such online content sharing services in line with the terms and conditions set out in the licensing agreement, provided that such users do not act for commercial purposes. [See Council’s paragraph 1, subparagraph 3 (row 238)] 2a. Member States shall provide that where right holders do not wish to ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 248 doc. 9134/18 discussed at trilogue - see latest compromise text in row 237A] BM/ EN [Article 13 to be further discussed at trilogue - see latest compromise text in row LIMITE 241. 5138/19 ANNEX Location Art. 13, para 2 / para 2b (EP) COMMISSION PROPOSAL COM(2016)593 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 EP TEXT conclude licensing agreements, online content sharing service providers and right holders shall cooperate in good faith in order to ensure that unauthorised protected works or other subject matter are not available on their services. Cooperation between online content service providers and right holders shall not lead to preventing the availability of non-infringing works or other protected subject matter, including those covered by an exception or limitation to copyright. 2b. Members States shall ensure that online content sharing service providers referred to in paragraph 1 put in place effective and expeditious complaints and redress mechanisms that are available to users in case the cooperation ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 237A] 249 [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] BM/ EN [Paragraph 2 of the COM proposal was moved to new paragraph 7 of Council’s text] LIMITE 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 in paragraph 1. EP TEXT referred to in paragraph 2a leads to unjustified removals of their content. Any complaint filed under such mechanisms shall be processed without undue delay and be subject to human review. Right holders shall reasonably justify their decisions to avoid arbitrary dismissal of complaints. Moreover, in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation, the cooperation shall not lead to any identification of individual users nor the processing of their personal data. Member States shall also ensure that users have access to an independent body for the resolution of disputes as well as to a court or another relevant judicial authority to assert the use of ECOMP 3.B. COUNCIL TEXT 250 POSSIBLE COMPROMISE SOLUTION BM/ EN doc. 9134/18 LIMITE 242. 5138/19 ANNEX Location Art. 13, para 3 (EP) COMMISSION PROPOSAL COM(2016)593 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. EP TEXT an exception or limitation to copyright rules. [See Council’s Article 13(7) (row 252)] 3. As of [date of entry into force of this directive], the Commission and the Member States shall facilitate where appropriate, the cooperation organise dialogues between the information society service providers and rightholders through stakeholder dialogues stakeholders to harmonise and 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. and issue guidance to ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 251 [See new paragraph 8 of Council’s text] [stakeholder dialogues were moved to row 253, now paragraph 8 in row 237A] BM/ EN [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] LIMITE 243. 5138/19 ANNEX Location Art. 13, para 3 (Council) COMMISSION PROPOSAL COM(2016)593 EP TEXT 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. ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 252 [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] BM/ EN 3. When an online content sharing service provider performs an act of communication to the public or an act of making available to the public, it shall not be eligible for the exemption of liability provided for in Article 14 LIMITE 244. 245. 5138/19 ANNEX Location Art. 13, para 4, introductory part Art. 13, para COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 of Directive 2000/31/EC for unauthorised acts of communication to the public and making available to the public, without prejudice to the possible application of Article 14 of Directive 2000/31/EC to those services for purposes other than copyright relevant acts. 4. In the absence of the authorisation referred to in the second subparagraph of paragraph 1, Member States shall provide that an online content sharing service provider shall not be liable for acts of communication to the public or making available to the public within the meaning of this Article when: POSSIBLE COMPROMISE SOLUTION [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] 253 [Article 13 to be further BM/ EN (a) it demonstrates that it has made best efforts to LIMITE 246. 5138/19 ANNEX Location 4, point (a) Art. 13, para 4, point (b) COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION discussed at trilogue - see latest compromise text in row 237A] 254 [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] BM/ EN prevent the availability of specific works or other subject matter by implementing effective and proportionate measures, in accordance with paragraph 5, to prevent the availability on its services of the specific works or other subject matter identified by rightholders and for which the rightholders have provided the service with relevant and necessary information for the application of these measures; and (b) upon notification by rightholders of works or other subject matter, it has acted expeditiously to remove or disable access to these works or other subject matter and it demonstrates that it has made its best efforts to prevent their usersfuture LIMITE Art. 13, para 5, introductory part Location 247. Art. 13, para 5, point (a) Art. 13, para 5, point (b) 248. 249. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] 255 [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] BM/ EN availability through the measures referred to in point (a). 5. The measures referred to in point (a) of paragraph 4 shall be effective and proportionate, taking into account, among other factors: (a) the nature and size of the services, in particular whether they are provided by a microenterprise or a small-sized enterprise within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC, and their audience; (b) the amount and the type of works or other subject matter uploaded by the users of the services; LIMITE 250. 251. 5138/19 ANNEX Location Art. 13, para 5, point (c) Art. 13, para 6 COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] 256 [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] BM/ EN (c) the availability and costs of the measures as well as their effectiveness in light of technological developments in line with the industry best practice referred to in paragraph 8. 6. Member States shall ensure that online content sharing service providers and rightholders cooperate with each other in a diligent manner to ensure the effective functioning of the measures referred to in point (a) of paragraph 4 over time. Online content sharing service providers shall provide rightholders, at their request, with adequate information on the deployment and functioning of these measures to allow the assessment of their effectiveness, in particular information on the type of measures used and, where LIMITE 252. 5138/19 ANNEX Location Art. 13, para 7 COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 257 [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] BM/ EN licensing agreements are concluded between service providers and rightholders, information on the use of content covered by the agreements. 7. Member States shall ensure that the measures referred to in paragraph 4 are implemented by the online content sharing service provider without prejudice to the possibility for their users to benefit from exceptions or limitations to copyright. For that purpose, the service providers referred to in paragraph 1 shall put in place a complaints and redress mechanisms that are is available to users of the service in case of disputes over the application of the measures reffered to in paragraph 1 to their content. Complaints submitted under this LIMITE 253. 5138/19 ANNEX Location Art. 13, para 8 COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION 258 [Article 13 to be further discussed at trilogue - see latest compromise text in row 237A] BM/ EN mechanism shall be processed by the online content sharing service provider in cooperation with relevant rightholders within a reasonable period of time. Rightholders shall duly justify the reasons for their requests to remove or block access to their specific works or other subject matter. Member States shall endeavour to put in place independent bodies to assess complaints related to the application of the measures. [Paragraph 2 of the COM proposal, amended] 8. The Commission and the Member States shall encourage stakeholder dialogues to define best practices for the measures referred to in point (a) of paragraph 4. Member States shall also endeavour to establish mechanisms to LIMITE Article 13a EP TEXT Art. 13a, title Location 254. Art. 13a, subpara 1 COMMISSION PROPOSAL COM(2016)593 255. ECOMP 3.B. Member States shall provide that disputes between successors in title and 5138/19 ANNEX COUNCIL TEXT doc. 9134/18 259 POSSIBLE COMPROMISE SOLUTION BM/ EN facilitate the assessment of the effectiveness and proportionality of these measures and provide the Commission regularly with information on those mechanisms. The Commission shall, in consultation with online content sharing service providers, rightholders and other relevant stakeholders and taking into account the results of the stakeholder dialogues and the national mechanisms, issue guidance on the application of the measures referred to in point (a) of paragraph 4. [Paragraph 3 of the COM proposal, reworded] LIMITE 256. 257. 258. 259. 5138/19 ANNEX Location EP TEXT 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. COMMISSION PROPOSAL COM(2016)593 Art. 13a, subpara 2 The Member States shall inform the Commission of the establishment of this body no later than (date mentioned in Article 21(1)). information society services regarding the application of Article 13(1) may be subject to an alternative dispute resolution system. Art. 13a, subpara 3 Article 13b Member States shall ensure that information society Use of protected content by information society services providing automated image referencing Art. 13b, title Art. 13b ECOMP 3.B. COUNCIL TEXT 260 POSSIBLE COMPROMISE SOLUTION BM/ EN doc. 9134/18 LIMITE 260. 261. 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 CHAPTER 3 Fair remuneration in contracts of authors and EP TEXT service providers that automatically reproduce or refer to significant amounts of copyright-protected visual works and make them available to the public for the purpose of indexing and referencing conclude fair and balanced licensing agreements with any requesting rightholders in order to ensure their fair remuneration. Such remuneration may be managed by the collective management organisation of the rightholders concerned. CHAPTER 3 Fair remuneration in contracts of authors and ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION (deleted) CHAPTER 3 261 Fair remuneration in [exploitation] contracts of BM/ EN TITLE IV MEASURES TO ACHIEVE A WELLFUNCTIONING MARKETPLACE FOR COPYRIGHT CHAPTER 3 Fair remuneration in exploitation contracts of authors and performers LIMITE 262. 263. 5138/19 ANNEX Location Art. -14, title Art. -14, para 1 COMMISSION PROPOSAL COM(2016)593 performers EP TEXT performers Article -14 Principle of fair and proportionate remuneration 1. 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 ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 262 doc. 9134/18 authors and performers [to be discussed at political level] RED Article -14 Principle of [fair] [appropriate and proportionate] remuneration [Article -14 to be further discussed at trilogue] RED BM/ EN 1. Member States shall ensure that when authors and performers license or transfer their exclusive rights for the exploitation of their works or other subject matter they are entitled to receive appropriate and proportionate remuneration. LIMITE 264. 5138/19 ANNEX Location Art. -14, para 2 COMMISSION PROPOSAL COM(2016)593 EP TEXT statutory remuneration mechanisms. 2. Paragraph 1 shall not apply where an author or performer grants a nonexclusive usage right for the benefit of all users free of charge. ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 263 doc. 9134/18 [to be further discussed at trilogue] RED 2. In the implementation of this principle into national law, Member States shall be free to use different mechanisms and take into account the principle of contractual freedom and a fair balance of rights and interests. [recitals to clarify that the principle of fair remuneration does not prevent authors and performers from granting a license/transferring their rights for free, nor from concluding licensing agreements for a lump sum remuneration; see elements for recital language in row 90] BM/ EN [to be further discussed at trilogue] LIMITE 265. Location COMMISSION PROPOSAL COM(2016)593 EP TEXT Art. -14, para 3 COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION RED Deleted [to be further discussed at trilogue] RED Deleted Article 14 Transparency obligation [to be further discussed at trilogue] Article 14 Transparency obligation 264 Article 14 Transparency obligation 3. Member States shall take account of the specificities of each sector in encouraging the proportionate remuneration for rights granted by authors and performers. Article 14 Transparency obligation 266. Art. 14, title Art. -14, para 4 267. Art. 14, para 1 BM/ EN 1. Member States shall ensure that authors and performers receive on a regular basis, at least once a year, and taking into account the specificities of each sector and the relative importance of each individual contribution timely, [adequate LIMITE 1. Member States shall ensure that authors and performers receive on a regular basis, at least once a year, and taking into account the specificities of each sector, timely, adequate and sufficient information on the exploitation of their ECOMP 3.B. 1. Member States shall ensure that authors and performers receive on a regular basis, not less than once a year , and taking into account the specificities of each sector and the relative importance of each 4. Contracts shall specify the remuneration applicable to each mode of exploitation. 268. 1. Member States shall ensure that authors and performers receive on a regular basis and taking into account the specificities of each sector, timely, adequate and sufficient information on the exploitation of their 5138/19 ANNEX 269. 5138/19 ANNEX Location Art. 14, para 1a COMMISSION PROPOSAL COM(2016)593 works and performances from those to whom they have licensed or transferred their rights, notably as regards modes of exploitation, revenues generated and remuneration due. EP TEXT individual contribution, timely adequate and sufficient, 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. 1a. Member States shall ensure that where the licensee or transferee of rights of authors and performers subsequently licenses those rights to another party, such party ECOMP 3.B. COUNCIL TEXT doc. 9134/18 works and performances from those to whom they have licensed or transferred their rights or their successors in title, notably as regards modes of exploitation, revenues generated and remuneration due. POSSIBLE COMPROMISE SOLUTION and sufficient/ up to date, relevant and comprehensive information on the exploitation of their works and performances from those to whom they have licensed or transferred their rights or their successors in title, notably as regards modes of exploitation, direct and indirect all(*) revenues generated and remuneration due. [(*) explicit reference to 'merchandising' as example of a possible form of covered revenues in the recitals (see recital (40a), row 92, and recital (42), row 95)] 265 1a. Member States shall ensure that where the rights referred to in paragraph 1 have subsequently been licensed, authors and performers or their representatives shall, at their request, receive from BM/ EN 1a. Member States shall ensure that where the rights referred to in paragraph 1 have subsequently been licensed to another party, authors and performers may, at LIMITE 270. 5138/19 ANNEX Location Art. 14, para 1a, subpara 2 COMMISSION PROPOSAL COM(2016)593 EP TEXT shall share all information referred to in paragraph 1 with the licensee or transferee. The main licensee or transferee shall pass all the information referred to in the first subparagraph on to the author or performer. That information shall be unchanged, except in the ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION sub-licencees additional information if their first contractual counterpart does not hold all the information that would be necessary for the purposes of paragraph 1. Where this information is requested, the first contractual counterpart of authors and performers shall provide information on the identity of those sub-licensees. Member States may provide that any such request to those sub-licensees is made directly or indirectly through the contractual counterpart of the author or the performer. at 266 their request, receive from those third parties additional information if their first contractual counterpart does not hold all the information that would be necessary for the purposes of the information provision set out in paragraph 1. Member States may provide that such request to those third parties is made directly by the author or performer or indirectly through the contractual counterpart of the author or the performer. [provisionally agreed trilogue of 13/12/2018] Deleted BM/ EN [integrated into row 219, provisionally agreed at Trilogue of 13/12/2018] LIMITE 271. 5138/19 ANNEX Location Art. 14, para 2 COMMISSION PROPOSAL COM(2016)593 2. The obligation in paragraph 1 shall be proportionate and effective and shall ensure an appropriate level of transparency in every sector. EP TEXT case of commercially sensitive information as defined by Union or national law, which, without prejudice to Articles 15 and 16a, may be subject to a non-disclosure agreement, for the purpose of preserving fair competition. Where the main licensee or transferee does not provide the information as referred to in this subparagraph in a timely manner, the author or performer shall be entitled to request that information directly from the sub-licensee. [See Council’s Article 14(1a) (row 269)] 2. The obligation in paragraph 1 shall be proportionate and effective and shall ensure an appropriate a high level of transparency in every sector. ECOMP 3.B. COUNCIL TEXT 2. The obligation in paragraph 1 shall be proportionate and effective and shall to ensure an appropriate a POSSIBLE COMPROMISE SOLUTION 2. The obligation in paragraph 1 shall be proportionate and effective and shall ensure an appropriate level of transparency in every sector. 267 doc. 9134/18 BM/ EN GREEN LIMITE 272. 5138/19 ANNEX Location Art. 14, para 3 COMMISSION PROPOSAL COM(2016)593 However, in those cases where the administrative burden resulting from the obligation would be disproportionate in view of the revenues generated by the exploitation of the work or performance, Member States may adjust the obligation in paragraph 1, provided that the obligation remains effective and ensures an appropriate level of transparency. 3. Member States may decide that the obligation in paragraph 1 does not apply when the contribution of the author or performer is not significant having regard to the overall work or performance. EP TEXT However, in those cases where the administrative burden resulting from the obligation would be disproportionate in view of the revenues generated by the exploitation of the work or performance, Member States may adjust the obligation in paragraph 1, provided that the obligation remains effective and ensures an appropriate a high level of transparency. Deleted ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION high level of transparency in every sector. Member States may provide that in duly justified cases where the administrative burden resulting from the obligation in paragraph 1 would bebecome disproportionate in view of the revenues generated by the exploitation of the work or performance, the obligation is limited to the types and level of information that can reasonably be expected in such cases. [provisionally agreed at Trilogue 26/11/2018] 268 However, in thoseMember States may provide that in duly justified cases where the administrative burden resulting from the obligation in paragraph 1 would bebecome disproportionate in view of the revenues generated by the exploitation of the work or performance, Member States may adjust the obligation in paragraph 1, provided that is limited to the obligation remains effectivetypes and ensures an appropriate level of transparency.information that can reasonably be expected in such cases. 3. Member States may decide that the obligation in paragraph 1 does not apply when the contribution of the author or performer is not significant having regard to the overall work or performance. BM/ EN 3. Member States may decide that the obligation in paragraph 1 does not apply when the contribution of the author or performer is not significant having regard to the overall work or performance, unless the author or performer demonstrates that LIMITE 273. 5138/19 ANNEX Location Art. 14, para 3a COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION he requires the information for exercising his rights under Article 15(1) and requests the information for that purpose. [provisionally agreed at trilogue 13/12/2018; “demonstrates”: EN equivalent for DE “darlegen”/"bescheinigen"] BM/ EN 269 3a. Members States may GREEN provide that for agreements subject to or 3a. Members States may based on collective provide that for agreements bargaining agreements the subject to or based on transparency rules of the collective bargaining relevant collective agreements the transparency bargaining agreement are rules of the relevant collective applicable provided that bargaining agreement are they meet the minimum applicable provided that they criteria laid down in the are comparable to the national provisions obligations / meet the adopted in conformity with minimum criteria laid down the requirements of in the national provisions paragraphs 1 to 3. adopted in conformity with the requirements of LIMITE 274. 275. 276. 5138/19 ANNEX Location Art. 14, para 4 COMMISSION PROPOSAL COM(2016)593 EP TEXT Article 15 Contract adjustment mechanism 4. Paragraph 1 shall not be applicable to entities subject to the transparency obligations established by Directive 2014/26/EU. Art. 15, title Article 15 Contract adjustment mechanism Member States shall ensure, in the absence of collective bargaining agreements 4. Paragraph 1 shall not be applicable to entities subject to the transparency obligations established by Directive 2014/26/EU or to collective bargaining agreements, where those obligations or agreements provide for transparency requirements comparable to those referred to in paragraph 2. Art. 15, [para 1 (Council)] Member States shall ensure that authors and performers are entitled to request ECOMP 3.B. COUNCIL TEXT doc. 9134/18 4. Paragraph 1 shall not be applicable to agreements concluded by entities subject to the transparency obligations established by defined in Article 3(a) and (b) of Directive 2014/26/EU. or by other entities subject to the national rules implementing Directive 2014/26/EU. Article 15 Contract adjustment mechanism POSSIBLE COMPROMISE SOLUTION paragraphs 1 to 3. [provisionally agreed at rilogue 26/11/2018] GREEN 4. When Article 18 of Directive 2014/26/EU is applicable, the obligation laid down in paragraph 1 shall not apply in respect of agreements concluded by entities defined in Article 3(a) and (b) of Directive 2014/26/EU or by other entities subject to the national rules implementing Directive 2014/26/EU. [provisionally agreed at Trilogue 03/12/2018/, together with related wording of recital (41), row 94] Article 15 Contract adjustment mechanism 270 GREEN 1. Member States shall ensure, in the absence of an BM/ EN 1. Member States shall ensure that authors and performers are entitled to LIMITE 277. 5138/19 ANNEX Location Art. 15, para 1a COMMISSION PROPOSAL COM(2016)593 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. EP TEXT providing for a comparable mechanism, that authors and performers or any representative organisation acting on their behalf are entitled to request claim additional, appropriate and fair 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. [See Council’s Article 15(1a) (row277)] ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION request additional, applicable collective appropriate remuneration bargaining agreement from the party with whom providing for a comparable they entered into a contract mechanism, that authors and for the exploitation of the performers or their rights or their successors in representatives are entitled to title, when the remuneration claim additional, appropriate originally agreed isturns out and fair remuneration from to be disproportionately low the party with whom they compared to the subsequent entered into a contract for the relevant revenues and exploitation of the rights or benefits derived from the their successors in title, when actual exploitation of the the remuneration originally works or performances. agreed turns out to be disproportionately low compared to all the subsequent relevant revenues and derived from the exploitation of the works or performances. [provisionally agreed at Trilogue 03/12/2018; as to revenues, see comment on Article 14(1), row 268] 271 [Article 15(1a) Council’s text deleted/incorporated into paragraph 1] BM/ EN 1a. Members States may provide that for agreements subject to or based on collective bargaining agreements the LIMITE 278. 279. 5138/19 ANNEX Location Art. 15, para 2 Art. 16, title COMMISSION PROPOSAL COM(2016)593 Article 16 Dispute resolution mechanism EP TEXT Article 16 Dispute resolution mechanism ECOMP 3.B. COUNCIL TEXT doc. 9134/18 rules of the relevant collective bargaining agreement for the adjustment of remuneration are applicable instead of the national provisions implementing the contract adjustment mechanism. 2. Paragraph 1 shall not be applicable to agreements concluded by entities defined in Article 3(a) and (b) of Directive 2014/26/EU or by other entities subject to the national rules implementing Directive 2014/26/EU. POSSIBLE COMPROMISE SOLUTION [provisionally agreed at trilogue 03/12/2018] 2. Paragraph 1 shall not be applicable to agreements concluded by entities defined in Article 3(a) and (b) of Directive 2014/26/EU or by other entities which are already subject to the national rules implementing Directive 2014/26/EU. [provisionally agreed at trilogue 13/12/2018] GREEN Article 16 272 Article 16 Dispute resolution mechanismprocedure Dispute resolution procedure BM/ EN [provisionally agreed at LIMITE 280. 281. 5138/19 ANNEX Location Art. 16, [para 1 (Council)] Art. 16, para 2 COMMISSION PROPOSAL COM(2016)593 EP TEXT Member States shall provide Member States shall provide that disputes concerning the that disputes concerning the transparency obligation transparency obligation under Article 14 and the under Article 14 and the contract adjustment contract adjustment mechanism under Article 15 mechanism under Article 15 may be submitted to a may be submitted to a voluntary, alternative dispute voluntary, alternative dispute resolution procedure. resolution procedure. Member States shall ensure that representative organisations of authors and performers may initiate such procedures at the request of one or more authors and performers. [See Council’s Article 16(2) (row 281)] [See Parliament’s Article 16 last phrase (row 280)] ECOMP 3.B. COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION Trilogue 26/11/2018] 1. Member States shall GREEN provide that disputes concerning the transparency Member States shall provide obligation under Article 14 that disputes concerning the and the contract adjustment transparency obligation under mechanism under Article 15 Article 14 and the contract may be submitted to a adjustment mechanism under voluntary, alternative dispute Article 15 may be submitted to resolution procedure. a voluntary, alternative dispute resolution procedure. Member States shall ensure that representative organisations of authors and performers may initiate such procedures at the specific request of one or more authors and performers. [provisionally agreed at Trilogue 26/11/2018] [Article 16(2) Council’s text deleted/incorporated into paragraph 1] 273 [provisionally agreed at BM/ EN 2. Member States shall ensure that representative organisations of authors and performers, including collective management LIMITE 282. 283. 5138/19 ANNEX Location Art. 16a (Council), title Art. 16a (Council) COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT doc. 9134/18 organisations, may initiate such disputes on behalf of one or more authors and performers at their request. Article 16a Contractual provisions POSSIBLE COMPROMISE SOLUTION Trilogue 26/11/2018] GREEN Article 16a Contractual Common provisions [provisionally agreed at Trilogue 26/11/2018] GREEN 274 Member States shall ensure that any contractual provision which prevents the compliance with the provisions in Articles 14 and 15 of this Directive shall be unenforceable in relation to authors and performers. (1) Member States shall ensure that any contractual provision which prevents the compliance with the provisions in Articles 14 and 15 of this Chapter(*) Directive shall be unenforceable in relation to authors and performers. BM/ EN [(*) 'Chapter' refers to Articles 14,15 and 16, ie the provisions of the initial Commission LIMITE 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 275 doc. 9134/18 proposal; see also recital (43a), row 99] [provisionally agreed at Trilogue 26/11/2018] (2) [Exclusion of software developers] Member States shall provide that Articles -14 to 16a of this Directive do not apply to authors of a computer program in the sense of Article 2 of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs*. _________ BM/ EN * Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Codified version), OJ L 111, 5.5.2009, LIMITE 284. 285. 5138/19 ANNEX Location Art. 16a (EP), title Art. 16a (EP), para 1 COMMISSION PROPOSAL COM(2016)593 EP TEXT Article 16 a Right of revocation 1. 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 subjectmatter on an exclusive basis, the author or performer has a right of revocation where there is an absence of exploitation of the work or other protected subject matter or where there is a continuous lack of regular reporting in accordance with Article 14. Member States may provide for specific provisions ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 276 doc. 9134/18 p. 16–22. RED Article 16 a Right of revocation [Article 16a to be further discussed at trilogue] RED BM/ EN 1. Member States [shall ensure][may provide] that where an author or a performer has licensed or transferred her or his rights concerning a work or other protected subjectmatter on an exclusive basis, the author or performer may revoke in whole or in part the licence or the transfer of rights where there is a lack of exploitation of the work or other protected subject-matter [EP: or where there is a continuous lack of regular reporting in accordance with LIMITE 286. 5138/19 ANNEX Location Art. 16a (EP), para 2 COMMISSION PROPOSAL COM(2016)593 EP TEXT taking into account the specificities of different sectors and works and anticipated exploitation period, notably provide for time limits for the right of revocation. 2. The right of revocation provided for in paragraph 1 may be exercised only after a reasonable time from the conclusion of the licence or transfer agreement, and only upon written notification setting an appropriate deadline by which the exploitation of the licensed or transferred rights is to take place. After the expiration of that deadline, the author or performer may choose to terminate the exclusivity of the contract instead of revoking the rights. Where a work or other subjectmatter contains the ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 277 doc. 9134/18 Article 14]. [to be further discussed at trilogue] RED 2. Specific provisions for the mechanism for revocation shall be provided for in national law taking into account (a) the specificities of the different sectors and the different types of works and performances; and BM/ EN (b) where a work or other subject-matter contains the contribution of more than one author or performer, the LIMITE 5138/19 ANNEX Location COMMISSION PROPOSAL COM(2016)593 EP TEXT contribution of a plurality of authors or performers, the exercise of the individual right of revocation of such authors or performers shall be regulated by national law, laying down the rules on the right of revocation for collective works, taking into account the relative importance of the individual contributions. ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 278 doc. 9134/18 relative importance of the individual contributions and the legitimate interests of all authors and performers affected by the exercise of the revocation mechanism by an individual author or performer. Member States may exclude works or other subject matter from the application of the mechanism if such works or subject matter usually contain contributions of a plurality of authors or performers. Member States may provide that the revocation mechanism shall be exercised only within a specific time frame, where this is duly justified by the specificities of the sector, type of work or protected subject matter concerned. BM/ EN Member States may provide that that authors or performers may terminate the exclusivity of the contract instead of LIMITE 287. 5138/19 ANNEX Location Art. 16a (EP), para 3 COMMISSION PROPOSAL COM(2016)593 EP TEXT 3. Paragraphs 1 and 2 shall not apply if the nonexercise of the rights is predominantly due to circumstances which the author or the performer can be reasonably expected to remedy. ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 279 doc. 9134/18 revoking the rights. [to be further discussed at trilogue] RED BM/ EN 3. Member States may provide that the revocation provided for in paragraph 1 may be exercised only after a reasonable time after the conclusion of the licence or transfer agreement. The author or performer shall notify the person to whom the rights have been licensed or transferred and set an appropriate deadline by which the exploitation of the licensed or transferred rights is to take place. After the expiration of that deadline, the author or performer may choose to terminate the exclusivity of the contract instead of revoking the license or the transfer. LIMITE 288. 5138/19 ANNEX Location Art. 16a (EP), para 4 COMMISSION PROPOSAL COM(2016)593 EP TEXT 4. Contractual or other arrangements derogating from the right of revocation shall be lawful only if concluded by means of an agreement which is based on a collective bargaining agreement. ECOMP 3.B. COUNCIL TEXT POSSIBLE COMPROMISE SOLUTION 280 doc. 9134/18 [to be further discussed at trilogue] RED [EP: 4. Paragraph 1 shall not apply if the non-exercise of the rights is predominantly due to circumstances which the author or the performer can be reasonably expected to remedy.] [EP: 5. Member States may provide that any contractual provision derogating from the revocation mechanism shall be enforceable only if it is based on a collective bargaining agreement.] BM/ EN [to be further discussed at trilogue] LIMITE Location COMMISSION PROPOSAL COM(2016)593 EP TEXT COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION TITLE V FINAL PROVISIONS Article 17 Amendments to other directives TITLE V FINAL PROVISIONS Article 17 Amendments to other directives 1. Directive 96/9/EC is amended as follows: TITLE V FINAL PROVISIONS Article 17 Amendments to other directives 1. Directive 96/9/EC is amended as follows: TITLE V FINAL PROVISIONS Article 17 Amendments to other directives 1. Directive 96/9/EC is amended as follows: 289. 1. Directive 96/9/EC is amended as follows: Art. 17, title 291. Art. 17, para 1 (a) In Article 6(2), point (b) is replaced by the following: 290. 292. (a) In Article 6(2), point (b) is replaced by the following: LIMITE BM/ EN 281 [ provisionally agreed at "(b) where there is use for GREEN the sole purpose of "(b) where there is use for the illustration for teaching or scientific research, as long as sole purpose of illustration for the source is indicated and to teaching or scientific research, as long as the source is the extent justified by the indicated and to the extent non-commercial purpose to justified by the nonbe achieved, without commercial purpose to be prejudice to the exceptions achieved, without prejudice to and the limitation provided the exceptions and the for in Articles 3 and 4 of limitation provided for in Directive [this Directive];" Articles 3 and 4 of Directive [this Directive];" (a) In Article 6(2), point (a) In Article 6(2), point (b) (b) is replaced by the is replaced by the following: following: Art. 17, para 1, point (a) ECOMP 3.B. "(b) where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved, without prejudice to the exceptions and the limitation provided for in Directive [this Directive];" Art. 17, para 1, point (a) "(b) where there is use for the sole purpose of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved, without prejudice to the exceptions and the limitation provided for in Directive [this Directive];" 293. 5138/19 ANNEX 294. Art. 17, para 1, point (b) Art. 17, para 1, point (b) 2. Directive 2001/29/EC is amended as follows: "(b) in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved, without prejudice to the exceptions and the limitation provided for in Directive [this Directive];" (b) In Article 9, point (b) is replaced by the following: 2. Directive 2001/29/EC is amended as follows: "(b) in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved, without prejudice to the exceptions and the limitation provided for in Directive [this Directive];" (b) In Article 9, point (b) is replaced by the following: EP TEXT 295. Art. 17, para 2 Location 296. COMMISSION PROPOSAL COM(2016)593 297. Art. 17, para 2, point (a) (a) In Article 5(2), point (c) is replaced by the following: ECOMP 3.B. (a) In Article 5(2), point (c) is replaced by the following: 5138/19 ANNEX COUNCIL TEXT doc. 9134/18 POSSIBLE COMPROMISE SOLUTION technical meeting of 13.11.2018] "(b) in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved, without prejudice to the exceptions and the limitation provided for in Articles 3 and 4 of Directive [this Directive];" GREEN (b) In Article 9, point (b) (b) In Article 9, point (b) is is replaced by the following: replaced by the following: "(b) in the case of extraction for the purposes of illustration for teaching or scientific research, as long as the source is indicated and to the extent justified by the non-commercial purpose to be achieved, without prejudice to the exceptions and the limitation provided for in Articles 3 and 4 of Directive [this Directive];" [provisionally agreed at technical meeting of 13.11.2018] 2. Directive 2001/29/EC 2. Directive 2001/29/EC is is amended as follows: amended as follows: BM/ EN 282 (a) In Article 5(2), point (a) In Article 5(2), point (c) (c) is replaced by the is replaced by the following: following: LIMITE Location COMMISSION PROPOSAL COM(2016)593 "(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, (b) In Article 5(3), point (a) is replaced by the following: Art. 17, para 2, point (a) Art. 17, para 2, point (b) 298. 299. Art. 17, para 2, point (b) "(c) in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage, without prejudice to the exceptions and the limitation provided for in Directive [this Directive];" 300. 5138/19 ANNEX EP TEXT "(c) in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage, without prejudice to the exceptions and the limitation provided for in Directive [this Directive];" (b) In Article 5(3), point (a) is replaced by the following: "(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, ECOMP 3.B. COUNCIL TEXT doc. 9134/18 "(c) in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage, without prejudice to the exceptions and the limitationexception provided for in Article 5 of Directive [this Directive];" POSSIBLE COMPROMISE SOLUTION GREEN "(c) in respect of specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives, which are not for direct or indirect economic or commercial advantage, without prejudice to the exception and the limitations provided for in Article 5 of Directive [this Directive];" [provisionally agreed at technical meeting of 13.11.2018] (b) In Article 5(3), point (b) In Article 5(3), point (a) (a) is replaced by the is replaced by the following: following: GREEN 283 "(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, BM/ EN "(a) use for the sole purpose of illustration for teaching or scientific research, as long as the source, including the author's name, is indicated, unless this turns out to be impossible and to the extent LIMITE EP TEXT (c) In Article 12(4), the following points are added: (c) In Article 12(4), the following points are added: Location COMMISSION PROPOSAL COM(2016)593 Art. 17, para 2, point (c) "(e) to examine the impact of the transposition of Directive [this Directive] on the functioning of the internal market and to highlight any transposition difficulties; unless this turns out to be impossible and to the extent justified by the noncommercial purpose to be achieved, without prejudice to the exceptions and the limitation provided for in Directive [this Directive];" 301. Art. 17, para 2, point (c) "(e) to examine the impact of the transposition of Directive [this Directive] on the functioning of the internal market and to highlight any transposition difficulties; unless this turns out to be impossible and to the extent justified by the noncommercial purpose to be achieved, without prejudice to the exceptions and the limitation provided for in Directive [this Directive];" 302. Art. 17, para 2, point (c) 303. (f) to facilitate the exchange of information on the relevant developments in legislation and case law ECOMP 3.B. (f) to facilitate the exchange of information on the relevant developments in legislation 5138/19 ANNEX COUNCIL TEXT doc. 9134/18 justified by the noncommercial purpose to be achieved, without prejudice to the exceptions and the limitation provided for in Articles 3 and 4 of Directive [this Directive];" POSSIBLE COMPROMISE SOLUTION unless this turns out to be impossible and to the extent justified by the noncommercial purpose to be achieved, without prejudice to the exceptions and the limitation provided for in Articles 3 and 4 of Directive [this Directive];" [provisionally agreed at technical meeting of 13.11.2018] (c) In Article 12(4), the (c) In Article 12(4), the following points are added: following points are added: (f) to facilitate the exchange of information on the relevant developments in legislation and case law as well as on the practical 284 (f) to facilitate the exchange of information on the relevant developments in legislation and case law as well as on the "(e) to examine the impact of the transposition of Directive [this Directive] on the functioning of the internal market and to highlight any transposition difficulties; BM/ EN "(e) to examine the impact of the transposition of Directive [this Directive] on the functioning of the internal market and to highlight any transposition difficulties; LIMITE 304. 305. 306. 5138/19 ANNEX Location Art. 17, para 2, point (c) Art. 17a, title Art. 17a as well as on the practical application of the measures taken by Member States to implement Directive [this Directive]; EP TEXT and case law as well as on the practical application of the measures taken by Member States to implement Directive [this Directive]; (g) to discuss any other questions arising from the application of Directive [this Directive]." COMMISSION PROPOSAL COM(2016)593 (g) to discuss any other questions arising from the application of Directive [this Directive]." Article 17 a Member States may adopt or maintain in force broader provisions, compatible with the exceptions and limitations existing in Union law, for uses covered by the exceptions or the limitation provided for in this Directive. ECOMP 3.B. COUNCIL TEXT doc. 9134/18 application of the measures taken by Member States to implement Directive [this Directive]; POSSIBLE COMPROMISE SOLUTION practical application of the measures taken by Member States to implement Directive [this Directive]; (g) to discuss any other questions arising from the application of Directive [this Directive]." Article 17 a 285 (g) to discuss any other questions arising from the application of Directive [this Directive]." GREEN GREEN BM/ EN Member States may adopt or maintain in force broader provisions, compatible with the exceptions and limitations set out in Directives 96/9/EC and 2001/29/EC, for uses or fields covered by the exceptions or limitations provided for in this Directive and on condition that their application does not adversely LIMITE 307. 308. 309. 5138/19 ANNEX Location Article 18 Application in time EP TEXT Article 18 Application in time 1. This Directive shall apply in respect of all works and other subject-matter which are protected by the Member States' legislation in the field of copyright on or after [the date mentioned in Article 21(1)]. COMMISSION PROPOSAL COM(2016)593 Art. 18, para 1 1. This Directive shall apply in respect of all works and other subject-matter which are protected by the Member States' legislation in the field of copyright on or after [the date mentioned in Article 21(1)]. Deleted Art. 18 Art. 18, para 2 2. The provisions of Article 11 shall also apply to press publications published before [the date mentioned in Article 21(1)]. ECOMP 3.B. COUNCIL TEXT doc. 9134/18 Article 18 Application in time POSSIBLE COMPROMISE SOLUTION affect nor circumvent the mandatory rules set out in this Directive. [provisional agreement at trilogue 25/10/2018 /26/11/2018; a recital should clarify that Article 17a does not allow MS to not implement the mandatory exceptions under this Directive] Article 18 Application in time 1. This Directive shall apply in respect of all works and other subject-matter which are protected by the Member States' legislation in the field of copyright on or after [the date mentioned in Article 21(1)]. 286 (Deleted) BM/ EN [Deleted] 1. This Directive shall apply in respect of all works and other subject-matter which are protected by the Member States' legislation in the field of copyright on or after [the date mentioned in Article 21(1)]. 2. LIMITE EP TEXT COUNCIL TEXT Article 19 Transitional provision POSSIBLE COMPROMISE SOLUTION 3. This Directive shall apply without prejudice to any acts concluded and rights acquired before [the date mentioned in Article 21(1)]. Article 19 Transitional provision Location doc. 9134/18 3. This Directive shall apply without prejudice to any acts concluded and rights acquired before [the date mentioned in Article 21(1)]. Article 19 Transitional provision Agreements for the licence or transfer of rights of authors and performers shall be subject to the transparency obligation in Article 14 as from [one year after the date mentioned in Article 21(1)]. COMMISSION PROPOSAL COM(2016)593 Art. 18, para 3 Article 19 Transitional provision Agreements for the licence or transfer of rights of authors and performers shall be subject to the transparency obligation in Article 14 as from [one year after the date mentioned in Article 21(1)]. Article 20 Protection of personal data 310. Art. 19, title Agreements for the licence or transfer of rights of authors and performers shall be subject to the transparency obligation in Article 14 as from [one year after the date mentioned in Article 21(1)]. Article 20 Protection of personal data 3. This Directive shall apply without prejudice to any acts concluded and rights acquired before [the date mentioned in Article 21(1)]. 311. Art. 19 Agreements for the licence or transfer of rights of authors and performers shall be subject to the transparency obligation in Article 14 as from [one year after the date mentioned in Article 21(1)]. Article 20 Protection of personal data 3. This Directive shall apply without prejudice to any acts concluded and rights acquired before [the date mentioned in Article 21(1)]. 312. Art. 20, title Article 20 Protection of personal data 314. 313. Art. 20 The processing of personal data carried out within the framework of this Directive shall be carried out in compliance with Directives 95/46/EC and 2002/58/EC. LIMITE BM/ EN 287 The processing of personal data carried out within the framework of this Directive shall be carried out in compliance with Directives 95/46/EC and 2002/58/EC. The processing of personal data carried out within the framework of this Directive shall be carried out in compliance with Directives 95/46/EC and 2002/58/EC. ECOMP 3.B. The processing of personal data carried out within the framework of this Directive shall be carried out in compliance with Directives 95/46/EC and 2002/58/EC. 5138/19 ANNEX Location Article 21 Transposition COMMISSION PROPOSAL COM(2016)593 Article 21 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [1224 months after entry into force] at the latest. They shall forthwith communicate to the Commission the text of those provisions. Article 21 Transposition When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [[12][24] months after entry into force] at the latest. They shall forthwith communicate to the Commission the text of those provisions. Article 21 Transposition 318. LIMITE BM/ EN 288 doc. 9134/18 COUNCIL TEXT Art. 21, title 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [12 months after entry into force] at the latest. They shall forthwith communicate to the Commission the text of those provisions. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. 2. Member States shall communicate to the Commission the text of the EP TEXT 315. Art. 21, para 1 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by [12 months after entry into force] at the latest. They shall forthwith communicate to the Commission the text of those provisions. When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. 2. Member States shall communicate to the Commission the text of the ECOMP 3.B. POSSIBLE COMPROMISE SOLUTION 316. Art. 21, para 1, sub-para 2 When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. 2. Member States shall communicate to the Commission the text of the 317. Art. 21, para 2 2. Member States shall communicate to the Commission the text of the 5138/19 ANNEX 319. 320. 321. 322. 5138/19 ANNEX COUNCIL TEXT main provisions of national law which they adopt in the field covered by this Directive. Article 22 Review main provisions of national law which they adopt in the field covered by this Directive. EP TEXT main provisions of national law which they adopt in the field covered by this Directive. Article 22 Review 1. No sooner than [five years after the date mentioned in Article 21(1)], the Commission shall carry out a review of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee. Location main provisions of national law which they adopt in the field covered by this Directive. Article 22 Review 1. No sooner than [five years after the date mentioned in Article 21(1)], the Commission shall carry out a review of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee. POSSIBLE COMPROMISE SOLUTION Art. 22, title Article 22 Review 1. No sooner than [five years after the date mentioned in Article 21(1)], the Commission shall carry out a review of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee. doc. 9134/18 Art. 22, para 1 1. No sooner than [five years after the date mentioned in Article 21(1)], the Commission shall carry out a review of this Directive and present a report on the main findings to the European Parliament, the Council and the European Economic and Social Committee. COMMISSION PROPOSAL COM(2016)593 Art. 22, para 2 2. Member States shall provide the Commission with the necessary information for the preparation of the report referred to in paragraph 1. BM/ EN 289 Article 23 LIMITE Article 23 2. Member States shall provide the Commission with the necessary information for the preparation of the report referred to in paragraph 1. Article 23 2. Member States shall provide the Commission with the necessary information for the preparation of the report referred to in paragraph 1. Article 23 2. Member States shall provide the Commission with the necessary information for the preparation of the report referred to in paragraph 1. Art. 23, title ECOMP 3.B. Location Art. 24, title Art. 23 324. Art. 24 323. 325. 5138/19 ANNEX COMMISSION PROPOSAL COM(2016)593 Entry into force EP TEXT Entry into force COUNCIL TEXT doc. 9134/18 Entry into force POSSIBLE COMPROMISE SOLUTION Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 24 Addressees This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 24 Addressees This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 24 Addressees This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 24 Addressees This Directive is addressed to the Member States. 290 This Directive is addressed to the Member States. BM/ EN This Directive is addressed to the Member States. LIMITE This Directive is addressed to the Member States. ECOMP 3.B.