Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on copyright in the Digital Single Market - Preparation for the trilogue - 4-column document - Main contents

Document date	26-09-2018
Publication date	27-09-2018
Reference	12513/18
From	General Secretariat of the Council
External link	original article
Original document in PDF

Council of the European Union

Brussels, 26 September 2018 (OR. en)

12513/18

Interinstitutional File: 2016/0280(COD) i

PI 130 CODEC 1538 EDUC 334 COMPET 623 AUDIO 69 CULT 102 DIGIT 182 TELECOM 305

NOTE

From: General Secretariat of the Council

To: Delegations

No. prev. doc.: 9134/18, 11520/18

No. Cion doc.: 12254/16

Subject: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF

THE COUNCIL on copyright in the Digital Single Market

• - 

  Preparation for the trilogue

• - 

  4-column document

Delegations will find attached the first version of the 4-column table on the above proposal, setting

out the text of the Commission proposal (12254/16) in the first column, the EP position as resulting

from the vote on 12 September 2018 (see 11520/18) in the second column, and the Council

negotiating mandate as approved by Coreper on 25 May 2018 (9134/18) in the third column.

ANNEX

Proposal for a directive of the European Parliament and of the Council

on copyright in the Digital Single Market

COM (2016) 593 final i - 2016/0280 (COD) i

PART 1: CITATIONS AND RECITALS

Note:

Differences between the EP's position and the Commission's proposal are highlighted in Bold/Italics. Deletions are marked with strikethrough.

Differences between the Council's position and the Commission's proposal are highlighted in Bold/Underlined.

Deletions are marked with strikethrough.

Row COMMISSION PROPOSAL EP TEXT

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• 1. 

  Proposal for a Proposal for a Proposal for a

  DIRECTIVE OF THE DIRECTIVE OF THE DIRECTIVE OF THE EUROPEAN PARLIAMENT EUROPEAN PARLIAMENT EUROPEAN PARLIAMENT AND OF THE COUNCIL AND OF THE COUNCIL AND OF THE COUNCIL

  on copyright in the Digital Single on copyright in the Digital Single on copyright in the Digital Single Market Market Market

  (Text with EEA relevance) (Text with EEA relevance) (Text with EEA relevance)

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• 2. 

  THE EUROPEAN THE EUROPEAN THE EUROPEAN

  PARLIAMENT AND THE PARLIAMENT AND THE PARLIAMENT AND THE COUNCIL OF THE EUROPEAN COUNCIL OF THE EUROPEAN COUNCIL OF THE EUROPEAN UNION, UNION, UNION,

• 3. 

  Having regard to the Treaty on Having regard to the Treaty on Having regard to the Treaty on the Functioning of the European the Functioning of the European the Functioning of the European Union, and in particular Union, and in particular Union, and in particular

  Article 114 thereof, Article 114 thereof, Article Articles 53(1), 62 and 114 thereof

• 4. 

  Having regard to the proposal Having regard to the proposal Having regard to the proposal from the European Commission, from the European Commission, from the European Commission,

• 5. 

  After transmission of the draft After transmission of the draft After transmission of the draft legislative act to the national legislative act to the national legislative act to the national parliaments, parliaments, parliaments,

• 6. 

  Having regard to the opinion of Having regard to the opinion of Having regard to the opinion of the European Economic and the European Economic and the European Economic and

  Social Committee 1 , Social Committee 1 , Social Committee 1 ,

• 7. 

  Having regard to the opinion of Having regard to the opinion of Having regard to the opinion of the Committee of the Regions 2 , the Committee of the Regions 2 , the Committee of the Regions 2 ,

1 OJ C , , p. .

2 OJ C , , p. .

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• 8. 

  Acting in accordance with the Acting in accordance with the Acting in accordance with the ordinary legislative procedure, ordinary legislative procedure, ordinary legislative procedure,

• 9. 

  Whereas: Whereas: Whereas:

• 10. 

  (1) The Treaty provides for the (1) The Treaty provides for the (1) The Treaty provides for the establishment of an internal establishment of an internal establishment of an internal

  market and the institution of a market and the institution of a market and the institution of a system ensuring that competition system ensuring that competition system ensuring that competition in the internal market is not in the internal market is not in the internal market is not distorted. Harmonisation of the distorted. Harmonisation of the distorted. Harmonisation of the laws of the Member States on laws of the Member States on laws of the Member States on copyright and related rights copyright and related rights copyright and related rights should contribute further to the should contribute further to the should contribute further to the achievement of those objectives. achievement of those objectives. achievement of those objectives.

• 11. 

  (2) The directives which have (2) The directives which have (2) The directivesDirectives been adopted in the area of been adopted in the area of which have been adopted in the copyright and related rights copyright and related rights area of copyright and related

  provide for a high level of contribute to the functioning of rights provide for a high level of protection for rightholders and the internal market, provide for a protection for rightholders and create a framework wherein the high level of protection for create a framework wherein the exploitation of works and other rightholders, facilitate the exploitation of works and other protected subject-matter can take clearance of rights and create a protected subject-matter can take place. This harmonised legal framework wherein the place. This harmonised legal framework contributes to the exploitation of works and other framework contributes to the good functioning of the internal protected subject-matter can take good functioning of the internal market; it stimulates innovation, place. This harmonised legal market; it stimulates innovation, creativity, investment and framework contributes to the creativity, investment and

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production of new content, also in good functioning of the a truly production of new content, also in the digital environment. The integrated internal market; it the digital environment. The protection provided by this legal stimulates innovation, creativity, protection provided by this legal framework also contributes to the investment and production of new framework also contributes to the Union's objective of respecting content, also in the digital Union's objective of respecting and promoting cultural diversity environment, with a view to and promoting cultural diversity while at the same time bringing avoiding fragmentation of the while at the same time bringing the European common cultural internal market. The protection the European common cultural heritage to the fore. Article provided by this legal framework heritage to the fore. Article 167(4) of the Treaty on the also contributes to the Union's 167(4) of the Treaty on the Functioning of the European objective of respecting and Functioning of the European Union requires the Union to take promoting cultural diversity while Union requires the Union to take cultural aspects into account in its at the same time bringing the cultural aspects into account in its action. 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.

• 12. 

  (3) Rapid technological (3) Rapid technological (3) Rapid technological developments continue to developments continue to developments continue to transform the way works and transform the way works and transform the way works and other subject-matter are created, other subject-matter are created, other subject-matter are created, produced, distributed and produced, distributed and produced, distributed and exploited. New business models exploited, and relevant exploited. New business models and new actors continue to legislation needs to be future and new actors continue to emerge. The objectives and the proof so as not to restrict emerge. The objectives and the

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principles laid down by the Union technological development. New principles laid down by the Union copyright framework remain business models and new actors copyright framework remain sound. However, legal uncertainty continue to emerge. The sound. However, legal uncertainty remains, for both rightholders and objectives and the principles laid remains, for both rightholders and users, as regards certain uses, down by the Union copyright users, as regards certain uses, including cross-border uses, of framework remain sound. including cross-border uses, of works and other subject-matter in However, legal uncertainty works and other subject-matter in the digital environment. As set remains, for both rightholders and the digital environment. As set out in the Communication of the users, as regards certain uses, out in the Communication of the Commission entitled ‘Towards a including cross-border uses, of Commission entitled ‘Towards a modern, more European works and other subject-matter in modern, more European copyright framework’ 3 , in some the digital environment. As set copyright framework’ 3 , in some areas it is necessary to adapt and out in the Communication of the areas it is necessary to adapt and supplement the current Union Commission entitled 'Towards a supplement the current Union copyright framework. This modern, more European copyright framework. keeping a Directive provides for rules to copyright framework' 3 , in some high level of protection of adapt certain exceptions and areas it is necessary to adapt and copyright and related rights. limitations to digital and crosssupplement the current Union This Directive provides for rules border environments, as well as copyright framework. This to adapt certain exceptions and measures to facilitate certain Directive provides for rules to limitations to digital and crosslicensing practices as regards the adapt certain exceptions and border environments, as well as dissemination of out-oflimitations to digital and crossmeasures to facilitate certain commerce works and the online border environments, as well as licensing practices as regards the availability of audiovisual works measures to facilitate certain dissemination of out-ofon video-on-demand platforms licensing practices as regards the commerce works and the online with a view to ensuring wider dissemination of out-ofavailability of audiovisual works

12513/18 BM/np 6

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access to content. In order to commerce works and the online on video-on-demand platforms achieve a well-functioning availability of audiovisual works with a view to ensuring wider marketplace for copyright, there on video-on-demand platforms access to content. In order to should also be rules on rights in with a view to ensuring wider achieve a well-functioning publications, on the use of works access to content. In order to marketplace for copyright, there and other subject-matter by online achieve a well-functioning and should also be rules on rights in service providers storing and fair marketplace for copyright, publications, on the use of works giving access to user uploaded there should also be rules on and other subject-matter by online content and on the transparency rights in publications, on the service providers storing and of authors' and performers' exercise and enforcement of the giving access to user uploaded contracts. use of works and other subjectcontent and on the transparency matter by on online service of authors' and performers' providers storing and giving contracts. access to user uploaded content providers’ platforms and on the transparency of authors' and performers' contracts and of the accounting linked with the exploitation of protected works in accordance with those contracts.

• 13. 

  (4) This Directive is based (4) This Directive is based upon, (4) This Directive is based upon, and complements, the rules and complements, the rules laid upon, and complements, the rules laid down in the Directives down in the Directives currently laid down in the Directives

  currently in force in this area, in in force in this area, in particular currently in force in this area, in particular Directive 96/9/EC i of Directive 96/9/EC i of the particular Directive 96/9/EC i of

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the European Parliament and of European Parliament and of the the European Parliament and of

4

the Council , Directive Council 4 , Directive 2000/31/EC the Council4 4 , Directive 2001/29/EC i of the European of the European Parliament and 2000/31/EC of the European Parliament and of the Council 6 , of the Council 5 , Directive Parliament and of the Council 5 , Directive 2006/115/EC i of the 2001/29/EC of the European Directive 2001/29/EC of the European Parliament and of the Parliament and of the Council 6 , European Parliament and of the Council 7 , Directive 2009/24/EC i Directive 2006/115/EC i of the Council 6 , Directive 2006/115/EC i of the European Parliament and of European Parliament and of the of the European Parliament and of

8

the Council , Directive Council 7 , Directive 2009/24/EC i the Council 7 , Directive 2012/28 i/EU of the European of the European Parliament and of 2009/24/EC of the European Parliament and of the Council 9 the Council 8 , Directive Parliament and of the Council 8 , and Directive 2014/26 i/EU of the 2012/28/EU of the European Directive 2012/28 i/EU of the European Parliament and of the Parliament and of the Council 9 European Parliament and of the Council 10 . and Directive 2014/26 i/EU of the Council 9 and Directive

4 Directive 96/9/EC i 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).

5 Directive 2000/31/EC i 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).

6 Directive 2001/29/EC i 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).

7 Directive 2006/115/EC i 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).

8 Directive 2009/24/EC i 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).

9 Directive 2012/28 i/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).

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European Parliament and of the 2014/26/EU of the European Council 10 . Parliament and of the Council 10 .

• 14. 

  (5) In the fields of research, (5) In the fields of research, (5) In the fields of research, education and preservation of innovation, education and education and preservation of cultural heritage, digital preservation of cultural heritage, cultural heritage, digital

  technologies permit new types of digital technologies permit new technologies permit new types of uses that are not clearly covered types of uses that are not clearly uses that are not clearly covered by the current Union rules on covered by the current Union by the current Union rules on exceptions and limitations. In rules on exceptions and exceptions and limitations. In addition, the optional nature of limitations. In addition, the addition, the optional nature of exceptions and limitations optional nature of exceptions and exceptions and limitations provided for in Directives limitations provided for in provided for in Directives 2001/29/EC i, 96/9/EC i and Directives 2001/29/EC i, 96/9/EC i 2001/29/EC, 96/9/EC i and 2009/24/EC in these fields may and 2009/24/EC in these fields 2009/24/EC in these fields may negatively impact the functioning may negatively impact the negatively impact the functioning of the internal market. This is functioning of the internal market. of the internal market. This is particularly relevant as regards This is particularly relevant as particularly relevant as regards cross-border uses, which are regards cross-border uses, which cross-border uses, which are becoming increasingly important are becoming increasingly becoming increasingly important in the digital environment. important in the digital in the digital environment. Therefore, the existing exceptions environment. Therefore, the Therefore, the existing exceptions and limitations in Union law that existing exceptions and and limitations in Union law that are relevant for scientific limitations in Union law that are are relevant for scientific research, teaching and relevant for innovation, scientific research, teaching and

10 Directive 2014/26 i/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).

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preservation of cultural heritage research, teaching and preservation of cultural heritage should be reassessed in the light preservation of cultural heritage should be reassessed in the light of those new uses. Mandatory should be reassessed in the light of those new uses. Mandatory exceptions or limitations for uses of those new uses. Mandatory exceptions or limitations for uses of text and data mining exceptions or limitations for uses of text and data mining technologies in the field of of text and data mining technologies in the field of scientific research, illustration for technologies in the field of scientific research, illustration for teaching in the digital innovation and scientific teaching in the digital environment and for preservation research, illustration for teaching environment and for preservation of cultural heritage should be in the digital environment and for of cultural heritage should be introduced. For uses not covered preservation of cultural heritage introduced. For uses not covered by the exceptions or the limitation should be introduced. For uses by the exceptions or the limitation provided for in this Directive, the not covered by the exceptions or provided for in this Directive, exceptions and limitations the limitation provided for in this theThe exceptions and limitations existing in Union law should Directive, the exceptions and existing in Union law should continue to apply. Directives limitations existing in Union law continue to apply, including to 96/9/EC and 2001/29/EC should should continue to apply. text and data mining, education be adapted. Therefore, existing welland preservation activities, as functioning exceptions in those long as they do not limit the fields should be allowed to scope of the mandatory continue to be available in exceptions laid down in this Member States, as long as they Directive and on condition that do not restrict the scope of the their application does not exceptions or limitations adversely affect nor circumvent provided for in this Directive. the mandatory rules set out in Directives 96/9/EC i and this Directive. Directives 2001/29/EC i should be adapted. 96/9/EC and 2001/29/EC should be adapted.

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• 15. 

  (6) The exceptions and the (6) The exceptions and the (6) The exceptions and the limitation set out in this Directive limitation limitations set out in limitation set outprovided for in seek to achieve a fair balance this Directive seek to achieve a this Directive seek to achieve a between the rights and interests of fair balance between the rights fair balance between the rights authors and other rightholders on and interests of authors and other and interests of authors and other the one hand, and of users on the rightholders on the one hand, and rightholders on the one hand, and other. They can be applied only in of users on the other. They can be of users on the other. They can be certain special cases which do not applied only in certain special applied only in certain special conflict with the normal cases which do not conflict with cases which do not conflict with exploitation of the works or other the normal exploitation of the the normal exploitation of the subject-matter and do not works or other subject-matter and works or other subject-matter and unreasonably prejudice the do not unreasonably prejudice the do not unreasonably prejudice the legitimate interests of the legitimate interests of the legitimate interests of the

  rightholders. rightholders. rightholders.

• 16. 

  (7) The protection of (7) The protection of (7) The protection of technological measures technological measures technological measures established in Directive established in Directive established in Directive 2001/29/EC i remains essential to 2001/29/EC remains essential to 2001/29/EC remains essential to ensure the protection and the ensure the protection and the ensure the protection and the effective exercise of the rights effective exercise of the rights effective exercise of the rights granted to authors and to other granted to authors and to other granted to authors and to other rightholders under Union law. rightholders under Union law. rightholders under Union law. This protection should be This protection should be This protection should be maintained while ensuring that maintained while ensuring that maintained while ensuring that the use of technological measures the use of technological measures the use of technological measures does not prevent the enjoyment of does not prevent the enjoyment of does not prevent the enjoyment of the exceptions and the limitation the exceptions and the limitation the exceptions and the limitation

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established in this Directive, established in this Directive, established in this Directive, which are particularly relevant in which are particularly relevant in which are particularly relevant in 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 i. Directive 2001/29/EC i. first subparagraph of Article 6(4) of Directive 2001/29/EC i, including where works and other subject-matter are made available through on-demand services.

• 17. 

  (8) New technologies enable (8) New technologies enable the (8) New technologies enable the automated computational automated computational analysis the automated computational

  analysis of information in digital of information in digital form, analysis of information in digital form, such as text, sounds, images such as text, sounds, images or form, such as text, sounds, images

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or data, generally known as text data, generally known as text and or data, generally known as text and data mining. Those data mining. Those technologies and data mining. Those technologies allow researchers to allow researchers to process Text technologies allow researchers to process large amounts of and data mining allows the process large amounts of information to gain new reading and analysis of large information with a view to knowledge and discover new amounts of digitally stored gaingaining new knowledge and trends. Whilst text and data information to gain new discoverdiscovering new trends. mining technologies are prevalent knowledge and discover new Whilst text and data mining across the digital economy, there trends. Whilst text and data technologies are prevalent across is widespread acknowledgment mining technologies are prevalent the digital economy, there is that text and data mining can in across the digital economy, there widespread acknowledgment that particular benefit the research is widespread acknowledgment text and data mining can in community and in so doing that text and data mining can in particular benefit the research encourage innovation. However, particular benefit the research community and in so doing in the Union, research community and in so doing encouragesupport innovation. organisations such as universities encourage innovation. However, However, in the Union, These and research institutes are in the Union, research technologies benefit research confronted with legal uncertainty organisations such as universities organisations such as universities as to the extent to which they can and research institutes are and well as cultural heritage perform text and data mining of confronted with legal uncertainty institutions, which may also content. In certain instances, text as to the extent to which they can carry out research institutesin and data mining may involve acts perform text and data mining of the context of their main protected by copyright and/or by content. In certain instances, text activities. However, in the the sui generis database right, and data mining may involve acts Union, such organisations and notably the reproduction of works protected by copyright and/or by institutions are confronted with or other subject-matter and/or the the sui generis database right, legal uncertainty as to the extent extraction of contents from a notably the reproduction of works to which they can perform text database. Where there is no or other subject-matter and/or the and data mining of content. In exception or limitation which extraction of contents from a certain instances, text and data

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applies, an authorisation to database. Where there is no mining may involve acts undertake such acts would be exception or limitation which protected by copyright and/or by required from rightholders. Text applies, an authorisation to the sui generis database right, and data mining may also be undertake such acts would be notably the reproduction of works carried out in relation to mere required from rightholders. Text or other subject-matter and/or the facts or data which are not and data mining may also be extraction of contents from a protected by copyright and in carried out in relation to mere database. Where there is no such instances no authorisation facts or data which are not exception or limitation which would be required. protected by copyright and in applies, an authorisation to such instances no authorisation undertake such acts would be would be required. 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]

• 18. 

  (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 mining which do not involve acts of reproduction or where the reproductions made fall under the The new exception

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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 i, 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.

[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)]

• 19. 

  (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 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 copyright

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protected 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 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

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inapplicable to uses of text and data mining, such uses should remain unaffected by this Directive.

• 20. 

  (9) Union law already provides (9) Union law already provides (9) Union law already provides certain exceptions and limitations certain exceptions and limitations for certain exceptions and

  covering uses for scientific covering uses for scientific limitations covering uses for research purposes which may research purposes which may scientific research purposes which apply to acts of text and data apply to acts of text and data may apply to acts of text and data mining. However, those mining. However, those mining. However, those exceptions and limitations are exceptions and limitations are exceptions and limitations are optional and not fully adapted to optional and not fully adapted to optional and not fully adapted to the use of technologies in the use of technologies in the use of technologies in scientific research. Moreover, scientific research. Moreover, scientific research. Moreover, where researchers have lawful where researchers have lawful where researchers have lawful access to content, for example access to content, for example access to content, for example through subscriptions to through subscriptions to through subscriptions to publications or open access publications or open access publications or open access licences, the terms of the licences licences, the terms of the licences licences, the terms of the licences may exclude text and data may exclude text and data may exclude text and data mining. As research is mining. As research is mining. As research is increasingly carried out with the increasingly carried out with the increasingly carried out with the assistance of digital technology, assistance of digital technology, assistance of digital technology, there is a risk that the Union's there is a risk that the Union's there is a risk that the Union's competitive position as a research competitive position as a research competitive position as a research area will suffer unless steps are area will suffer unless steps are area will suffer unless steps are taken to address the legal taken to address the legal taken to address the legal uncertainty for text and data uncertainty for text and data uncertainty for text and data

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mining. mining. mining.

• 21. 

  (10) This legal uncertainty (10) This legal uncertainty (10) This legal uncertainty should be addressed by providing should be addressed by providing should be addressed by providing for a mandatory exception to the for a mandatory exception for for a mandatory exception to the right of reproduction and also to research organisations to the exclusive right of reproduction the right to prevent extraction right of reproduction and also to and also to the right to prevent from a database. The new the right to prevent extraction extraction from a database. The exception should be without from a database. The new new exception should be without prejudice to the existing exception should be without prejudice to the existing

  mandatory exception on prejudice to the existing mandatory exception on temporary acts of reproduction mandatory exception on temporary acts of reproduction laid down in Article 5(1) of temporary acts of reproduction laid down in Article 5(1) of Directive 2001/29 i, which should laid down in Article 5(1) of Directive 2001/29 i, which should continue to apply to text and data Directive 2001/29 i, which should continue to apply to text and data mining techniques which do not continue to apply to text and data mining techniques which do not involve the making of copies mining techniques which do not involve the making of copies going beyond the scope of that involve the making of copies going beyond the scope of that exception. Research organisations going beyond the scope of that exception. In line with the should also benefit from the exception. Research organisations existing European research exception when they engage into should also benefit from the policy, which encourages public-private partnerships. exception when they engage into universities and research public-private partnerships. institutes to develop Educational establishments and collaborations with the private cultural heritage institutions that sector, Researchresearch conduct scientific research organisations should also benefit should also be covered by the from the exception when they

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text and data mining exception, engage into their research provided that the results of the activities are carried out in the research do not benefit an framework of public-private undertaking exercising a decisive partnerships. While research influence upon such organisations and cultural organisations in particular. In heritage institutions should the event that the research is remain the beneficiaries of the carried out in the framework of a exception, they should be able public-private partnership, the to rely on their private partners undertaking participating in the for carrying out text and data public-private partnership mining, including by using their should also have lawful access to technological tools. the works and other subject

matter. The reproductions and [The second phrase of recital (10) extractions made for text and of the COM proposal was moved data mining purposes should be to new recital (8a) - see row 18]

stored in a secure manner and in a way that ensures that the copies are only used for the purpose of scientific research.

• 22. 

  (11) Research organisations (11) Research organisations (11) Research organisations across the Union encompass a across the Union encompass a across the Union encompass a wide variety of entities the wide variety of entities the wide variety of entities the

  primary goal of which is to primary goal of which is to primary goal of which is to conduct scientific research or to conduct scientific research or to conduct scientific research or to do so together with the provision do so together with the provision do so together with the provision of educational services. Due to of educational services. Due to of educational services. The term the diversity of such entities, it is the diversity of such entities, it is "scientific research" within the

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important to have a common important to have a common meaning of this Directive covers understanding of the beneficiaries understanding of the beneficiaries both the natural sciences and of the exception. Despite different of the exception. Despite different the human sciences. Due to the legal forms and structures, legal forms and structures, diversity of such entities, it is research organisations across research organisations across important to have a common Member States generally have in Member States generally have in understanding of the beneficiaries common that they act either on a common that they act either on a of the exception.research not for profit basis or in the not for profit basis or in the organisations. They should for context of a public-interest context of a public-interest example cover entities such as mission recognised by the State. mission recognised by the State. research institutes, hospitals Such a public-interest mission Such a public-interest mission carrying out research, may, for example, be reflected may, for example, be reflected universities, including through public funding or through through public funding or through university libraries, or other provisions in national laws or provisions in national laws or higher education institutions. public contracts. At the same public contracts. At the same Despite different legal forms and time, organisations upon which time, organisations upon which structures, research organisations commercial undertakings have a commercial undertakings have a across the Member States decisive influence allowing them decisive influence allowing them generally have in common that to exercise control because of to exercise control because of they act either on a not for profit structural situations such as their structural situations such as their basis or in the context of a publicquality of shareholders or quality of shareholders or interest mission recognised by the members, which may result in members, which may result in State. Such a public-interest preferential access to the results preferential access to the results mission may, for example, be of the research, should not be of the research, should not be reflected through public funding considered research organisations considered research organisations or through provisions in national for the purposes of this Directive. for the purposes of this Directive. laws or public contracts. At the same timeConversely, organisations upon which commercial undertakings have a

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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.

• 23. 

  (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.

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• 24. 

  (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 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.

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• 25. 

  (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 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

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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 2001/29/EC.

• 26. 

  (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

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exception. exception. validation or user authentication. These measures should not exceed what is 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.

• 27. 

  (13) There is no need to provide (13) There is no need to provide (13) There is no need toIn view for compensation for rightholders for compensation for rightholders of the nature and scope of the as regards uses under the text and as regards uses under the text and exception, which is limited to

  data mining exception introduced data mining exception introduced entities carrying out scientific by this Directive given that in by this Directive given that in research any potential harm to view of the nature and scope of view of the nature and scope of rightholders created through the exception the harm should be the exception the harm should be this exception should be minimal. minimal. 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

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the exception the harm should be minimal.

• 28. 

  (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 i. At the same time, consideration should be given to the fact that users of text and data mining techniques may be faced with legal

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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 i. 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 mining process and the copies made are not kept beyond that process. This optional exception

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or limitation should only apply when the work or other subjectmatter 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 laid down in this Directive.

• 29. 

  (13a) To encourage innovation also in the private sector,

  Member States should be able to provide for an exception going

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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.

• 30. 

  (14) Article 5(3)(a) of Directive (14) Article 5(3)(a) of Directive (14) Article 5(3)(a) of Directive

  2001/29/EC allows Member 2001/29/EC allows Member 2001/29/EC allows Member States to introduce an exception States to introduce an exception States to introduce an exception or limitation to the rights of or limitation to the rights of or limitation to the rights of reproduction, communication to reproduction, communication to reproduction, communication to the public and making available the public and making available the public and making available to the public for the sole purpose to the public for the sole purpose to the public of works and other of, among others, illustration for of, among others, illustration for subject matter in such a way teaching. In addition, Articles teaching. In addition, Articles that members of the public may 6(2)(b) and 9(b) of Directive 6(2)(b) and 9(b) of Directive access them from a place and a 96/9/EC permit the use of a 96/9/EC permit the use of a time individually chosen by database and the extraction or redatabase and the extraction or rethem (‘making available to the utilization of a substantial part of utilization of a substantial part of public’), for the sole purpose of, its contents for the purpose of its contents for the purpose of among others, illustration for illustration for teaching. The illustration for teaching. The teaching. In addition, Articles scope of those exceptions or scope of those exceptions or 6(2)(b) and 9(b) of Directive limitations as they apply to digital limitations as they apply to digital 96/9/EC permit the use of a uses is unclear. In addition, there uses is unclear. In addition, there database and the extraction or reis a lack of clarity as to whether is a lack of clarity as to whether utilization of a substantial part of those exceptions or limitations those exceptions or limitations its contents for the purpose of would apply where teaching is would apply where teaching is illustration for teaching. The

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provided online and thereby at a provided online and thereby at a scope of those exceptions or distance. Moreover, the existing distance. Moreover, the existing limitations as they apply to digital framework does not provide for a framework does not provide for a uses is unclear. In addition, there cross-border effect. This situation cross-border effect. This situation is a lack of clarity as to whether may hamper the development of may hamper the development of those exceptions or limitations digitally-supported teaching digitally-supported teaching would apply where teaching is activities and distance learning. activities and distance learning. provided online and thereby at a Therefore, the introduction of a Therefore, the introduction of a distance. Moreover, the existing new mandatory exception or new mandatory exception or legal framework does not provide limitation is necessary to ensure limitation is necessary to ensure for a cross-border effect. This that educational establishments that educational establishments situation may hamper the benefit from full legal certainty benefit from full legal certainty development of digitallywhen using works or other when using works or other supported teaching activities and subject-matter in digital teaching subject-matter in digital teaching distance learning. Therefore, the activities, including online and activities, including online and introduction of a new mandatory across borders. 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.

• 31. 

  (15) While distance learning and (15) While distance learning and (15) While distance learning and cross-border education cross-border education cross-border education

  programmes are mostly programmes are mostly programmes are mostly developed at higher education developed at higher education developed at higher education level, digital tools and resources level, digital tools and resources level, digital tools and resources

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are increasingly used at all are increasingly used at all are increasingly used at all education levels, in particular to education levels, in particular to education levels, in particular to improve and enrich the learning improve and enrich the learning improve and enrich the learning experience. The exception or experience. The exception or experience. The exception or limitation provided for in this limitation provided for in this limitation provided for in this Directive should therefore benefit Directive should therefore benefit Directive should therefore benefit all educational establishments in all educational establishments in all educational establishments primary, secondary, vocational primary, secondary, vocational inrecognised by a Member and higher education to the extent and higher education to the extent State, including primary, they pursue their educational they pursue their educational secondary, vocational and higher activity for a non-commercial activity for a non-commercial education. It should apply only purpose. The organisational purpose. The organisational to the extent they pursue their structure and the means of structure and the means of educational activity for a that the funding of an educational funding of an educational uses are justified by the nonestablishment are not the decisive establishment are not the decisive commercial purpose. of the factors to determine the nonfactors to determine the nonparticular teaching activity. The commercial nature of the activity. commercial nature of the activity. organisational structure and the Where cultural heritage means of funding of an institutions pursue an educational establishment educational objective and are areshould not be the decisive involved in teaching activities, it factors to determine the nonshould be possible for Member commercial nature of the activity. States to consider those institutions as an educational establishment under this exception in so far as their teaching activities are concerned.

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• 32. 

  (16) The exception or limitation (16) The exception or limitation (16) The exception or limitation should cover digital uses of works should cover digital uses of works for the sole purpose of

  and other subject-matter such as and other subject-matter such as illustration for teaching the use of parts or extracts of the use of parts or extracts of provided for in this Directive works to support, enrich or works to support, enrich or should cover be understood as complement the teaching, complement the teaching, covering digital uses of works including the related learning including the related learning and other subject-matter such as activities. The use of the works or activities. The exception or the use of parts or extracts of other subject-matter under the limitation of use should be works to support, enrich or exception or limitation should be granted as long as the work or complement the teaching, only in the context of teaching other subject-matter used including the related learning and learning activities carried out indicates the source, including activities. under the responsibility of the authors’ name, unless that

  educational establishments, turns out to be impossible for […]*

  including during examinations, reasons of practicability. The use

  and be limited to what is of the works or other subject In most cases, the concept of necessary for the purpose of such matter under the exception or illustration would therefore activities. The exception or limitation should be only in the imply uses of parts or extracts limitation should cover both uses context of teaching and learning of works only, which should not through digital means in the activities carried out under the substitute the purchase of classroom and online uses responsibility of educational materials primarily intended through the educational establishments, including during for educational markets. When establishment's secure electronic examinations, and be limited to implementing the exception or network, the access to which what is necessary for the purpose limitation, Member States should be protected, notably by of such activities. The exception should remain free to specify, authentication procedures. The or limitation should cover both for the different categories of exception or limitation should be uses through digital means in the works or other subject-matter understood as covering the classroom where the teaching and in a balanced manner, the

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specific accessibility needs of activity is physically provided, proportion of a work or other persons with a disability in the including where it takes place subject-matter that may be context of illustration for outside the premises of the used for the sole purpose of teaching. educational establishment, for illustration for teaching. The example in libraries or cultural Uses allowed under the heritage institutions, as long as exception or limitation should be the use is made under the understood to cover the specific responsibility of the educational accessibility needs of persons establishment, and online uses with a disability in the context of through the educational illustration for teaching. establishment's secure electronic

network environment, the access *[The second and third phrase of to which should be protected, recital (16) of the COM proposal notably by authentication were moved to new recital (16a) procedures. The exception or Council's text - see row 33]

limitation should be understood as covering the specific accessibility needs of persons with a disability in the context of illustration for teaching.

• 33. 

  (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

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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 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

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establishment's teaching staff and to the pupils or students enrolled in a study programme, notably through appropriate authentication procedures, including password based authentication.

[Phrases of new recital (16a) were taken from recital (16) (second and third phrase) of the COM proposal – see row 32]

• 34. 

  (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.

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• 35. 

  (17) Different arrangements, (17) Different arrangements, (17) Different arrangements, based on the implementation of based on the implementation of based on the implementation of the exception provided for in the exception provided for in the exception provided for in Directive 2001/29/EC i or on Directive 2001/29/EC i or on Directive 2001/29/EC i or on

  licensing agreements covering licensing agreements covering licensing agreements covering further uses, are in place in a further uses, are in place in a further uses, are in place in a number of Member States in number of Member States in number of Member States in order to facilitate educational uses order to facilitate educational uses order to facilitate educational of works and other subject-matter. of works and other subject-matter. uses of works and other subject Such arrangements have usually Such arrangements have usually matter. Such arrangements have been developed taking account of been developed taking account of usually been developed taking the needs of educational the needs of educational account of the needs of establishments and different establishments and different educational establishments and levels of education. Whereas it is levels of education. Whereas it is different levels of education. essential to harmonise the scope essential to harmonise the scope Whereas it is essential to of the new mandatory exception of the new mandatory exception harmonise the scope of the new or limitation in relation to digital or limitation in relation to digital mandatory exception or limitation uses and cross-border teaching uses and cross-border teaching in relation to digital uses and activities, the modalities of activities, the modalities of cross-border teaching activities, implementation may differ from a implementation may differ from a the modalities of implementation Member State to another, to the Member State to another, to the may differ from a Member State extent they do not hamper the extent they do not hamper the to another, to the extent they do effective application of the effective application of the not hamper the effective exception or limitation or crossexception or limitation or crossapplication of the exception or border uses. This should allow border uses. This should allow limitation or cross-border uses. Member States to build on the Member States to build on the Member States should for existing arrangements concluded existing arrangements concluded example remain free to require at national level. In particular, at national level. In particular, that the use of works and other

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Member States could decide to Member States could decide to subject matter should respect subject the application of the subject the application of the moral rights of authors and exception or limitation, fully or exception or limitation, fully or performers. This should allow partially, to the availability of partially, to the availability of Member States to build on the adequate licences, covering at adequate licences, covering. Such existing arrangements concluded least the same uses as those licences can take the form of at national level. In particular, allowed under the exception. This collective licensing agreements, Member States could decide to mechanism would, for example, extended collective licensing subject the application of the allow giving precedence to agreements and licences that are exception or limitation, fully or licences for materials which are negotiated collectively such as partially, to the availability of primarily intended for the “blanket licences”, in order to adequate licences, covering at educational market. In order to avoid educational establishments least the same uses as those avoid that such mechanism results having to negotiate individually allowed under the exception. in legal uncertainty or with rightholders. Such licenses ThisMember States could administrative burden for should be affordable and cover at notably use this mechanism educational establishments, least the same uses as those would, for example, allow Member States adopting this allowed under the exception. This givingto give precedence to approach should take concrete mechanism would, for example, licences for materials which are measures to ensure that licensing allow giving precedence to primarily intended for the schemes allowing digital uses of licences for materials which are educational market or for sheet works or other subject-matter for primarily intended for the music. In order to avoid that such the purpose of illustration for educational market, or for mechanism results in legal teaching are easily available and teaching in educational uncertainty or administrative that educational establishments establishments or sheet music. In burden for educational are aware of the existence of such order to avoid that such establishments, Member States licensing schemes. mechanism results in legal adopting this approach should uncertainty or administrative take concrete measures to ensure burden for educational that rightholders make the establishments, Member States licensing schemes allowing

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adopting this approach should digital uses of works or other take concrete measures to ensure subject-matter for the purpose of that such licensing schemes illustration for teaching are easily allowing digital uses of works or available and that educational other subject-matter for the establishments are aware of the purpose of illustration for existence of such licensing teaching are easily available and schemes. Such measures may that educational establishments include the development of are aware of the existence of such licensing schemes tailored to licensing schemes. Member the needs of educational States should be able to provide establishments and the for systems to ensure that there development of information is fair compensation for tools aimed at ensuring the rightholders for uses under those visibility of the existing exceptions or limitations. licensing schemes. 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]

• 36. 

  (17a) Member States should remain free to provide that rightholders receive fair

  compensation for the digital uses of their works or other

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subject-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.

• 37. 

  (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 educational establishment may use protected works or other subject-matter under that exception and, conversely, when it should act under a licensing scheme.

• 38. 

  (18) An act of preservation may (18) An act of preservation of a (18) An act of preservation may require a reproduction of a work work or other subject-matter in require a reproduction of a work or other subject-matter in the the collection of a cultural or other subject-matter in the

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collection of a cultural heritage heritage institution may require a collection of a cultural heritage institution and consequently the reproduction of a work or other institution may require a authorisation of the relevant subject-matter in the collection of reproduction and consequently rightholders. Cultural heritage a cultural heritage institution and the authorisation of the relevant institutions are engaged in the consequently require the rightholders. Cultural heritage preservation of their collections authorisation of the relevant institutions are engaged in the for future generations. Digital rightholders. Cultural heritage preservation of their collections technologies offer new ways to institutions are engaged in the for future generations. Digital preserve the heritage contained in preservation of their collections technologies offer new ways to those collections but they also for future generations. Digital preserve the heritage contained in create new challenges. In view of technologies offer new ways to those collections but they also these new challenges, it is preserve the heritage contained in create new challenges. In view of necessary to adapt the current those collections but they also these new challenges, it is legal framework by providing a create new challenges. In view of necessary to adapt the current mandatory exception to the right these new challenges, it is legal framework by providing a of reproduction in order to allow necessary to adapt the current mandatory exception to the right those acts of preservation. legal framework by providing a of reproduction in order to allow mandatory exception to the right those acts of preservation. of reproduction in order to allow those acts of preservation by such institutions.

• 39. 

  (19) Different approaches in the (19) Different approaches in the (19) Different approaches in the

  Member States for acts of Member States for acts of Member States for acts of preservation by cultural heritage reproduction for preservation by preservation by cultural heritage institutions hamper cross-border cultural heritage institutions institutions hamper cross-border cooperation and the sharing of hamper cross-border cooperation, cooperation and the sharing of means of preservation by cultural and the sharing of means of means of preservation by cultural heritage institutions in the internal preservation by cultural heritage heritagesuch institutions in the

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market, leading to an inefficient institutions in the internal market, internal market, leading to an use of resources. and the establishment of crossinefficient use of resources. border 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 the preservation of cultural heritage.

• 40. 

  (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 cultural heritage institutions to reproduce heritage institutions to reproduce heritage institutions to reproduce works and other subject-matter works and other subject-matter works and other subject-matter permanently in their collections permanently in their collections permanently in their collections for preservation purposes, for for preservation purposes, for for preservation purposes, for example to address technological example to address technological example to address technological obsolescence or the degradation obsolescence or the degradation obsolescence or the degradation of original supports. Such an of original supports or to insure of original supports. Such an exception should allow for the works. Such an exception should exception should allow for the making of copies by the allow for the making of copies by 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 subjectsubject-matter to the extent required in order to produce a matter and to the extent required required in order to produce a

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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 heritage institutions and their permanent collections therefore beneficiaries of this should remain subject to the exception. Member States authorisation of rightholders, should, for the purpose of this unless permitted by other exception, be able to maintain exceptions or limitations provisions to treat publicly provided for by Union law. accessible galleries as museums.

• 41. 

  (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

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acting on their behalf and under their responsibility, including those that are based in other Member States, for the making of copies.

• 42. 

  (21) For the purposes of this (21) For the purposes of this (21) For the purposes of this

  Directive, works and other Directive, works and other Directive, works and other subject-matter should be subject-matter should be subject-matter should be considered to be permanently in considered to be permanently in considered to be permanently in the collection of a cultural the collection of a cultural the collection of a cultural heritage institution when copies heritage institution when copies heritage institution when copies are owned or permanently held by of such works or other subject are owned or permanently held by the cultural heritage institution, matter are owned or permanently the cultural heritage for example as a result of a held by the cultural heritage institutionsuch institutions, for transfer of ownership or licence institution, those organisations, example as a result of a transfer agreements. for example as a result of a of ownership or licence transfer of ownership or, licence agreements or permanent agreements, a legal deposit or a custody arrangements. 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.

• 43. 

  (21a) Technological developments have given rise to

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information society services enabling their users to upload content and make it available in diverse forms and for various purposes, including to illustrate an idea, criticism, parody or pastiche. Such content may include short extracts of preexisting protected works or other subject-matter that such users might have altered, combined or otherwise transformed.

• 44. 

  (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 i. A situation of this type creates legal uncertainty for both users and rightholders. It is therefore necessary to provide a new specific exception to permit the legitimate uses of extracts of pre

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existing 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 professional nature of the content concerned or the degree of economic harm be examined,

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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.

• 45. 

  (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 Article 13 of this Directive.

• 46. 

  (22) Cultural heritage (22) Cultural heritage institutions (22) Cultural heritage institutions should benefit from a should benefit from a clear institutions should benefit from a clear framework for the framework for the digitisation and clear framework for the digitisation and dissemination, dissemination, including across digitisation and dissemination,

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including across borders, of outborders, of out-of-commerce including across borders, of outof-commerce works or other works or other subject-matter. of-commerce works or other subject-matter. However, the However, the particular subject- matter. that are particular characteristics of the characteristics of the collections considered out of commerce for collections of out-of-commerce of out-of-commerce works mean the purposes of this Directive. works mean that obtaining the that obtaining the prior consent of However, the particular prior consent of the individual the individual rightholders may characteristics of the collections rightholders may be very difficult. be very difficult. This can be due, of out-of-commerce works, This can be due, for example, to for example, to the age of the together with the amount of the age of the works or other works or other subject-matter, works involved in mass subject-matter, their limited their limited commercial value or digitisation projects, mean that commercial value or the fact that the fact that they were never obtaining the prior consent of the they were never intended for intended for commercial use or individual rightholders may be commercial use. It is therefore have never been in commerce. It very difficult. This can be due, necessary to provide for measures is therefore necessary to provide for example, to the age of the to facilitate the licensing of rights for measures to facilitate the works or other subject-matter, in out-of-commerce works that licensing of rights in use of outtheir limited commercial value or are in the collections of cultural of-commerce works that are in the the fact that they were never heritage institutions and thereby collections of cultural heritage intended for commercial use. It is to allow the conclusion of institutions and thereby to allow therefore necessary to provide for agreements with cross-border the conclusion of agreements with measures to facilitate the effect in the internal market. cross-border effect in the internal collective licensing of rights in market. out-of-commerce works that are permanently in the collections of cultural heritage institutions and thereby to allow the conclusion of agreements with cross-border effect in the internal market.

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• 47. 

  (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 collection available online under an exception to copyright and related rights. While it is

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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 exception only applies when certain conditions are fulfilled and to provide legal certainty, Member States should determine, in consultation with

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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.

• 48. 

  (23) Member States should, (23) Member States should, (23) Member States should, within the framework provided within the framework provided within the framework provided for in this Directive, have for in this Directive, have for in this Directive, have

  flexibility in choosing the specific flexibility in choosing the specific flexibility in choosing the specific type of mechanism allowing for type of mechanism allowing for type of mechanism, such as licences for out-of-commerce licences for out-of-commerce extended collective licensing or works to extend to the rights of works to extend to the rights of presumption of representation, rightholders that are not rightholders that are not allowing for licences for out-ofrepresented by the collective represented by the relevant commerce works to extend to the management organisation, in collective management rights of rightholders that arehave accordance to their legal organisation, in accordance to not represented by themandated traditions, practices or with their legal traditions, a representative collective circumstances. Such mechanisms practices or circumstances. Such management organisation, in can include extended collective mechanisms can include extended accordance towith their legal licensing and presumptions of collective licensing and traditions, practices or representation. presumptions of representation. circumstances. Such mechanisms can include extended collective licensing and presumptions of representationMember States

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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 organisations.

• 49. 

  (24) For the purpose of those (24) For the purpose of those (24) For the purpose of those licensing mechanisms, a rigorous licensing mechanisms, a rigorous licensing mechanisms, a rigorous and well-functioning collective and well-functioning collective and well-functioning collective management system is important. management system is important management system is important. That system includes in particular and should be encouraged by the That system includes in particular rules of good governance, Member States. That system rules of good governance,

  transparency and reporting, as includes in particular rules of transparency and reporting, as

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well as the regular, diligent and good governance, transparency well as the regular, diligent and accurate distribution and payment and reporting, as well as the accurate distribution and payment of amounts due to individual regular, diligent and accurate of amounts due to individual rightholders, as provided for by distribution and payment of rightholders, as provided for by Directive 2014/26 i/EU. Additional amounts due to individual Directive 2014/26 i/EU. Additional appropriate safeguards should be rightholders, as provided for by appropriate safeguards should be available for all rightholders, who Directive 2014/26 i/EU. Additional available for all rightholders, who should be given the opportunity to appropriate safeguards should be should be given the opportunity exclude the application of such available for all rightholders, who to exclude the application of such mechanisms to their works or should be given the opportunity to mechanisms in relation to all other subject-matter. Conditions exclude the application of such their works or other subjectattached to those mechanisms licensing mechanisms or of such matter or to all licences, or in should not affect their practical exceptions to their works or other relation to particular works or relevance for cultural heritage subject-matter. Conditions other subject-matter or to institutions. attached to those mechanisms particular licences, at any time should not affect their practical before or under the duration of relevance for cultural heritage the licence. Conditions attached institutions. 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

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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.

• 50. 

  (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.

• 51. 

  (25) Considering the variety of (25) Considering the variety of (25) Considering the variety of works and other subject-matter in works and other subject-matter in works and other subject-matter in the collections of cultural heritage the collections of cultural heritage the collections of cultural heritage institutions, it is important that institutions, it is important that institutions, it is important that the licensing mechanisms the licensing mechanisms the licensing mechanisms

  introduced by this Directive are introduced by this Directive are introduced by this Directive are available and can be used in available and can be used in available and can be used in practice for different types of practice for different types of practice for different types of works and other subject-matter, works and other subject-matter, works and other subject-matter,

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including photographs, sound including photographs, sound including photographs, software, recordings and audiovisual works. recordings and audiovisual works. phonograms, sound recordings In order to reflect the specificities In order to reflect the specificities and audiovisual works. and of different categories of works of different categories of works unique works of art, and other subject-matter as and other subject-matter as irrespective of whether they regards modes of publication and regards modes of publication and have ever been commercially distribution and to facilitate the distribution and to facilitate the available. Never-in-commerce usability of those mechanisms, usability of those mechanisms, works may include posters, specific requirements and the solutions on the use of outleaflets, trench journals or procedures may have to be of-commerce works introduced amateur audiovisual works, but established by Member States for by this Directive, specific also unpublished works or the practical application of those requirements and procedures may other subject-matter, without licensing mechanisms. It is have to be established by Member prejudice to other applicable appropriate that Member States States for the practical application legal constraints, such as consult rightholders, users and of those licensing mechanisms. It national rules on moral rights. collective management is appropriate that Member States When a work is available in any organisations when doing so. consult rightholders, users of its different versions, such as cultural heritage institutions and subsequent editions of literary collective management works and alternate cuts of organisations when doing so. 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

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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 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.

• 52. 

  (25a) When determining whether works and other subject-matter are out of

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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 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

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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 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.

• 53. 

  (26) For reasons of international (26) For reasons of international (26) For reasons of international comity, the licensing mechanisms comity, the licensing mechanisms comity, the licensing mechanisms for the digitisation and and the exception for the for the digitisation and

  dissemination of out-ofdigitisation and dissemination of dissemination of out-ofcommerce works provided for in out-of-commerce works provided commerce works provided for in this Directive should not apply to for in this Directive should not this Directive should not apply to works or other subject-matter that apply to works or other subjectworks or other subject-matter that

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are first published or, in the matter that are first published or, are first published or, in the absence of publication, first in the absence of publication, first absence of publication, first broadcast in a third country or, in broadcast in a third country or, in broadcast in a third country or, in the case of cinematographic or the case of cinematographic or the case of cinematographic or audiovisual works, to works the audiovisual works, to works the audiovisual works, to works the producer of which has his producer of which has his producer of which has his headquarters or habitual residence headquarters or habitual residence headquarters or habitual residence in a third country. Those in a third country. Those in a third country. Those mechanisms should also not apply mechanisms should also not apply mechanisms should also not to works or other subject-matter to works or other subject-matter apply to works or other subjectof third country nationals except of third country nationals except matter of third country nationals when they are first published or, when they are first published or, except when they are first in the absence of publication, first in the absence of publication, first published or, in the absence of broadcast in the territory of a broadcast in the territory of a publication, first broadcast in the Member State or, in the case of Member State or, in the case of territory of a Member State or, in cinematographic or audiovisual cinematographic or audiovisual the case of cinematographic or works, to works of which the works, to works of which the 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

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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-ofcommerce 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.

• 54. 

  (27) As mass digitisation (27) As mass digitisation projects (27) As massThe 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 the case of promotional

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licence. licence. material about an exhibition. At the same time, as the digitisation projectsof the collections of

cultural heritage institutions 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.

• 55. 

  (28) Information regarding the (28) Information regarding the (28) Information regarding the future and ongoing use of out-offuture and ongoing use of out-offuture and ongoing use of out-ofcommerce works and other commerce works and other commerce works and other

  subject-matter by cultural heritage subject-matter by cultural heritage subject-matter by cultural institutions on the basis of the institutions on the basis of the heritage institutions on the basis licensing mechanisms provided licensing mechanisms or of the of the licensing mechanisms for in this Directive and the exception provided for in this provided for in this Directive and arrangements in place for all Directive and the arrangements in the arrangements in place for all rightholders to exclude the place for all rightholders to rightholders to exclude the application of licences to their exclude the application of application of licences to their

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works or other subject-matter licences or of the exception to works or other subject-matter should be adequately publicised. their works or other subjectshould be adequately publicised. This is particularly important matter should be adequately both before a licence is granted when uses take place across publicised. This is particularly and during the operation of the borders in the internal market. It important when uses take place licence as appropriate. This is is therefore appropriate to make across borders in the internal particularly important when uses provision for the creation of a market. It is therefore appropriate take place across borders in the single publicly accessible online to make provision for the creation internal market. It is therefore portal for the Union to make such of a single publicly accessible appropriate to make provision for information available to the online portal for the Union to the creation of a single publicly public for a reasonable period of make such information available accessible online portal for the time before the cross-border use to the public for a reasonable Union to make such information takes place. Under Regulation period of time before the crossavailable to the public for a (EU) No 386/2012 of the border use takes place. Under reasonable period of time before European Parliament and of the Regulation (EU) No 386/2012 i of the cross-border use takes place. Council 11 , the European Union the European Parliament and of This portal should facilitate the Intellectual Property Office is the Council 11 , the European possibility for rightholders to entrusted with certain tasks and Union Intellectual Property Office exclude the application of activities, financed by making use is entrusted with certain tasks and licences to their works or other of its own budgetary measures, activities, financed by making use subject-matter. Under aiming at facilitating and of its own budgetary measures, Regulation (EU) No 386/2012 i of supporting the activities of aiming at facilitating and the European Parliament and of national authorities, the private supporting the activities of the Council 11 , the European sector and Union institutions in national authorities, the private Union Intellectual Property

11 Regulation (EU) No 386/2012 i 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).

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the fight against, including the sector and Union institutions in Office is entrusted with certain prevention of, infringement of the fight against, including the tasks and activities, financed by intellectual property rights. It is prevention of, infringement of making use of its own budgetary therefore appropriate to rely on intellectual property rights. It is measuresmeans, aiming at that Office to establish and therefore appropriate to rely on facilitating and supporting the manage the European portal that Office to establish and activities of national authorities, making such information manage the European portal the private sector and Union available. making such information institutions in the fight against, available. 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 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

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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.

• 56. 

  (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 such licensing is not based on the out-of-commerce status of the covered works or other subject matter. These measures should

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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.

• 57. 

  (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 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

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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.

• 58. 

  (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

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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 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.

• 59. 

  (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

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Union law the status of licensing mechanisms allowing collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all 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

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that have not authorised the organisation that concludes the agreement, as long as it guarantees sufficient protection of the non-member rightholders. Such mechanisms may include extended collective licensing, legal mandate and presumptions of representation. The provisions of this Directive concerning 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 i.

• 60. 

  (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

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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 organisation offering the licence.

• 61. 

  (28f) Specifically, to justify the extended effect of the

  mechanisms, the organisation should be, on the basis of authorisations from 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

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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 to their interests, rightholders must be given an effective opportunity to exclude the application of such mechanisms to their works or other subjectmatter for all uses and works or other subject-matter, or for

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specific uses and works or other subject-matter. In such cases, any ongoing uses should be terminated within a reasonable period. Member States may also decide that additional measures are appropriate to protect rightholders.

• 62. 

  (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 profit basis, regulated by

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national law implementing Directive 2014/26 i/EU.

• 63. 

  (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 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

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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 and their impact on licensing and rightholders.

• 64. 

  (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

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legal clarity is ensured with regard to the representativeness of collective management organisations and the categorisation of works, Member States should foster sectorspecific stakeholder dialogue.

• 65. 

  (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

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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 exploitation.

• 66. 

  (30) To facilitate the licensing of (30) To facilitate the licensing of (30) To facilitate the licensing of rights in audiovisual works to rights in audiovisual works to rights in audiovisual works to

  video-on-demand platforms, this video-on-demand platforms, this video-on-demand Directive requires Member States Directive requires Member States platformsservices, this Directive to set up a negotiation mechanism to should set up a negotiation requires Member States to set allowing parties willing to mechanism, managed by an upprovide for a negotiation conclude an agreement to rely on existing or newly established mechanism allowing parties the assistance of an impartial national body, allowing parties willing to conclude an agreement body. The body should meet with willing to conclude an agreement to rely on the assistance of an the parties and help with the to rely on the assistance of an impartial body. The body or of negotiations by providing impartial body. The participation one or more mediators. For that professional and external advice. in this negotiation mechanism purpose, Member States may Against that background, Member and the subsequent conclusion either create a new body or rely States should decide on the of agreements should be on an existing one that fulfils conditions of the functioning of voluntary. Where a negotiation the conditions established by the negotiation mechanism, involves parties from different this Directive. Member States including the timing and duration Member States, those parties may designate one or more of the assistance to negotiations should agree beforehand on the competent bodies or mediators. and the bearing of the costs. competent Member State, should The body or the mediators Member States should ensure that they decide to rely on the should meet with the parties and administrative and financial negotiation mechanism. The help with the negotiations by

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burdens remain proportionate to body should meet with the parties providing professional and guarantee the efficiency of the and help with the negotiations by external advice. The body or the negotiation forum. 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' and the composition of such contractual freedom. Against 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.

• 67. 

  (30a) The preservation of the

  Union’s heritage is of the utmost importance and should be

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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 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

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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 the European Parliament Library. Such publications should not be made available online externally.

• 68. 

  (31) A free and pluralist press is (31) A free and pluralist press is (31) A free and pluralist press is essential to ensure quality essential to ensure quality essential to ensure quality

  journalism and citizens' access to journalism and citizens' access to journalism and citizens' access to information. It provides a information. It provides a information. It provides a fundamental contribution to fundamental contribution to fundamental contribution to public debate and the proper public debate and the proper public debate and the proper functioning of a democratic functioning of a democratic functioning of a democratic society. In the transition from society. The increasing society. In the transition from print to digital, publishers of press imbalance between powerful print to digital, publishersThe publications are facing problems platforms and press publishers, wide availability of press in licensing the online use of their which can also be news agencies, publications online has given

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publications and recouping their has already led to a remarkable rise to the emergence of new investments. In the absence of regression of the media online services, such as news recognition of publishers of press landscape on a regional level. In aggregators or media publications as rightholders, the transition from print to digital, monitoring services, for which licensing and enforcement in the publishers and news agencies of the reuse of press publications digital environment is often press publications are facing constitutes an important part of complex and inefficient. problems in licensing the online their business models and a use of their publications and source of revenues. Publishers recouping their investments. In of press publications are facing the absence of recognition of problems in licensing the online publishers of press publications as use of their publications and rightholders, licensing and recoupingto the providers of enforcement in the digital these kind of services, making it environment is often complex and more difficult for them to inefficient. 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.

• 69. 

  (32) The organisational and (32) The organisational and (32) The organisational and financial contribution of financial contribution of financial contribution of

  publishers in producing press publishers in producing press publishers in producing press publications needs to be publications needs to be publications needs to be

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recognised and further recognised and further recognised and further encouraged to ensure the encouraged to ensure the encouraged to ensure the sustainability of the publishing sustainability of the publishing sustainability of the publishing industry.It is therefore necessary industry and thereby to industry. It is therefore necessary to provide at Union level a guarantee the availability of to provide at Union level a harmonised legal protection for reliable information. It is harmonised legalle-gal protection press publications in respect of therefore necessary for Member for press publications in respect digital uses. Such protection States to provide at Union level a of digitalonline uses by should be effectively guaranteed harmonised legal protection for information society service through the introduction, in Union press publications in respect of providers, leaving unaffected law, of rights related to copyright the Union for digital uses. Such current copyright rules in for the reproduction and making protection should be effectively Union law applicable to uses of available to the public of press guaranteed through the press publications by other publications in respect of digital introduction, in Union law, of users, including individual uses. rights related to copyright for the users. Such protection should be reproduction and making effectively guaranteed through available to the public of press the introduction, in Union law, of publications in respect of digital rights related to copyright for the uses in order to obtain fair and reproduction and making proportionate remuneration for available to the public of press such uses. Private uses should be publications in respect of digital excluded from this reference. In usespublished by publishers addition, the listing in a search established in a Member State engine should not be considered in respect of online uses by as fair and proportionate information society service remuneration. providers within the meaning of Directive (EU) 2015/1535 of the

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European Parliament and of the Council. 12 The legal protection for press publications provided for by this directive should only benefit publishers established 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.

• 70. 

  (33) For the purposes of this (33) For the purposes of this (33) For the purposes of this

  Directive, it is necessary to define Directive, it is necessary to define Directive, it is necessary to define the concept of press publication in the concept of press publication in the concept of press publication a way that embraces only a way that embraces only in a way that embraces only journalistic publications, journalistic publications, journalistic publications, published by a service provider, published by a service provider, published by a service provider, periodically or regularly updated periodically or regularly updated periodically or regularly updated in any media, for the purpose of in any media, for the purpose of in any media, for the purpose of informing or entertaining. Such informing or entertaining. Such informing or entertaining.in any publications would include, for publications would include, for media, including on paper, in

12 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).

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instance, daily newspapers, instance, daily newspapers, the context of an economic weekly or monthly magazines of weekly or monthly magazines of activity which constitutes a general or special interest and general or special interest and provision of services under news websites. Periodical news websites. Periodical Union law. The press publications which are published publications which are published publications to be covered are for scientific or academic for scientific or academic those whose purpose is to purposes, such as scientific purposes, such as scientific inform the general public and journals, should not be covered journals, should not be covered which are periodically or by the protection granted to press by the protection granted to press regularly updated. Such publications under this Directive. publications under this Directive. publications would include, for This protection does not extend to This protection does not extend to instance, daily newspapers, acts of hyperlinking which do not acts of hyperlinking which do not weekly or monthly magazines of constitute communication to the constitute communication to the general or special interest and public. public. The protection shall also news websites. Press not extend to factual information publications contain mostly which is reported in journalistic literary works but increasingly articles from a press publication include other types of works and will therefore not prevent and subject-matter, notably anyone from reporting such photographs and videos. factual information. Periodical publications wich 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

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communication to the public.

• 71. 

  (34) The rights granted to the (34) The rights granted to the (34) The rights granted to the publishers of press publications publishers of press publications publishers of press publications under this Directive should have under this Directive should have under this Directive should have the same scope as the rights of the same scope as the rights of the same scope as the rights of reproduction and making reproduction and making reproduction and making

  available to the public provided available to the public provided available to the public provided for in Directive 2001/29/EC i, for in Directive 2001/29/EC i, for in Directive 2001/29/EC i, insofar as digital uses are insofar as digital uses are insofar as digitalonline uses are concerned. They should also be concerned. They Member States concerned.by information subject to the same provisions on should also be able to subject society service providers are exceptions and limitations as those rights to the same concerned. They should not those applicable to the rights provisions on exceptions and extend to acts of hyperlinking provided for in Directive limitations as those applicable to when they do not constitute 2001/29/EC including the the rights provided for in communication to the public. exception on quotation for Directive 2001/29/EC i including They should also be subject to the purposes such as criticism or the exception on quotation for same provisions on exceptions review laid down in Article purposes such as criticism or and limitations as those 5(3)(d) of that Directive. review laid down in Article applicable to the rights provided 5(3)(d) of that Directive. for in Directive 2001/29/EC i, including the exception on quotation for purposes such as criticism or review laid down in Article 5(3)(d) of that Directive.

• 72. 

  (34a) Uses of press publications by information society service providers can consist of the use

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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 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,

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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.

• 73. 

  (35) The protection granted to (35) The protection granted to (35) The protection granted to publishers of press publications publishers of press publications publishers of press publications under this Directive should not under this Directive should not under this Directive should not affect the rights of the authors and affect the rights of the authors and affect the rights of the authors other rightholders in the works other rightholders in the works and other rightholders in the

  and other subject-matter and other subject-matter works and other subject-matter incorporated therein, including as incorporated therein, including as incorporated therein, including as regards the extent to which regards the extent to which regards the extent to which authors and other rightholders can authors and other rightholders can authors and other rightholders can exploit their works or other exploit their works or other exploit their works or other subject-matter independently subject-matter independently subject-matter independently from the press publication in from the press publication in from the press publication in which they are incorporated. which they are incorporated. which they are incorporated. Therefore, publishers of press Therefore, publishers of press Therefore, publishers of press publications should not be able to publications should not be able to publications should not be able to invoke the protection granted to invoke the protection granted to invoke the protection granted to them against authors and other them against authors and other them against authors and other rightholders. This is without rightholders. This is without rightholders. or against other prejudice to contractual prejudice to contractual authorised users of the same

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arrangements concluded between arrangements concluded between works and other subjectthe publishers of press the publishers of press matter. This is without prejudice publications, on the one side, and publications, on the one side, and to contractual arrangements authors and other rightholders, on authors and other rightholders, on concluded between the publishers the other side. the other side. Notwithstanding of press publications, on the one the fact that authors of the works side, and authors and other incorporated in a press rightholders, on the other side. 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 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

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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.

• 74. 

  (36) Publishers, including those (36) Publishers, including those (36) Publishers, including those of press publications, books or of press publications, books or of press publications, books or

  scientific publications, often scientific publications, often and scientific publications, often operate on the basis of the music publications, operate on operate on the basis of the transfer of authors' rights by the basis of the transfer of transfer of authors' rights by means of contractual agreements. authors' rights by means of means of contractual agreements In this context, publishers make contractual agreements with or statutory provisions. In this an investment with a view to the authors. In this context, context, publishers make an exploitation of the works publishers make an investment investment with a view to the contained in their publications and acquire rights, in some fields exploitation of the works and may in some instances be including rights to claim a share contained in their publications deprived of revenues where such of compensation within joint and may in some instances be works are used under exceptions collective management deprived of revenues where such or limitations such as the ones for organisations of authors and works are used under exceptions private copying and reprography. publishers, with a view to the or limitations, such as the ones for In a number of Member States exploitation of the works private copying and reprography., compensation for uses under contained in their publications including the corresponding those exceptions is shared and may in some instances be existing national schemes for between authors and publishers. therefore also find themselves reprography in the Member

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In order to take account of this being deprived of revenues where States, or under public lending situation and improve legal such works are used under schemes. In a number of Member certainty for all concerned parties, exceptions or limitations such as States the compensation or Member States should be allowed the ones for private copying and remuneration for such uses to determine that, when an author reprography. In a large number of under those exceptions is shared has transferred or licensed his Member States compensation for between authors and publishers. rights to a publisher or otherwise uses under those exceptions is In order to take account of this contributes with his works to a shared between authors and situation and improve legal publication and there are systems publishers. In order to take certainty for all concerned parties, in place to compensate for the account of this situation and to Member States should be allowed harm caused by an exception or improve legal certainty for all but not obliged to determine that, limitation, publishers are entitled concerned parties, Member States when an author has transferred or to claim a share of such should be allowed to determine licensed his rights to a publisher compensation, whereas the that, when an author has or a collective management burden on the publisher to transferred or licensed his rights organisation that jointly substantiate his claim should not to a publisher or otherwise represents authors and exceed what is required under the contributes with his works to a publishers or otherwise system in place. publication and there are systems contributes with his works to a in place to compensate for the publication and there are systems harm caused by an exception or in place to compensate for the limitation, publishers are entitled harm caused by an exception or to claim a share of such limitation, publishers are entitled compensation, whereas the to claim a share of such burden on the publisher to compensation, whereas. The substantiate his claim should not same possibility should exist for exceed what is required under the remuneration for public system in place. provide an lending, while Member States equivalent compensation-sharing should remain free to decide not system if such a system was in to provide publishers with such

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operation in that Member State remuneration. Member States before 12 November 2015. The should remain free to determine share between authors and the burden on the publisher to publishers of such compensation substantiate his claim should not could be set in the internal exceed what is required underfor distribution rules of the the systemcompensation or collective management remuneration and to lay down organisation acting jointly on the conditions as to the sharing behalf of authors and publishers, of this compensation or or set by Members States in law remuneration between authors or regulation, in accordance with and publishers in the equivalent system that was in placeaccordance with their operation in that Member State national systems. 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.

• 75. 

  (36 a) Cultural and creative industries (CCIs) play a key role in reindustrialising Europe, are a driver for growth and are in a

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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 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.

• 76. 

  (37) Over the last years, the (37) Over the last years, the (37) Over the last years, the functioning of the online content functioning of the online content functioning of the online content marketplace has gained in marketplace market has gained in marketplace has gained in

  complexity. Online services complexity. Online services complexity. Online content providing access to copyright providing access to copyright sharing services providing access protected content uploaded by protected content uploaded by to a large amount of copyright - their users without the their users without the protected content uploaded by involvement of right holders have involvement of right holders have their users without the flourished and have become main flourished and have become main involvement of right holders have sources of access to content sources of access to copyright flourisheddeveloped and have online. This affects rightholders' protected content online. Online become main sources of access to possibilities to determine services are means of providing content online. ThisLegal

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whether, and under which wider access to cultural and uncertainty exists as to whether conditions, their work and other creative works and offer great such services engage in subject-matter are used as well as opportunities for cultural and copyright relevant acts and their possibilities to get an creative industries to develop need to obtain authorisations appropriate remuneration for it. new business models. However, from rightholders for the although they allow for diversity content uploaded by their users and ease of access to content, who do not hold the relevant they also generate challenges rights in the uploaded content, when copyright protected content without prejudice to the is uploaded without prior application of exceptions and authorisation from rightholders. limitations provided for in This affects rightholders' Union Law. This situation possibilities to determine affects rightholders' possibilities whether, and under which to determine whether, and under conditions, their work and other which conditions, their work and subject-matter are used as well as other subject-matter are content their possibilities to get an is used as well as their appropriate remuneration for it, possibilities to get an appropriate since some user uploaded remuneration for it. It is content services do not enter into therefore important to foster licensing agreements on the the development of the licensing basis that they claim to be market between rightholders covered by the “safe-harbour” and online content sharing exemption set out in Directive service providers. These 2000/31/EC. licensing agreements should be fair and keep a reasonable balance for both parties. Rightholders should receive an appropriate reward for the use

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of their works or other subject matter.

• 77. 

  (37a) Certain information (37a) The definition of an online society services, as part of their content sharing service normal use, are designed to give provider under this Directive access to the public to copyright targets only online services protected content or other which play an important role subject-matter uploaded by their on the online content market by users. The definition of an competing with other online online content sharing service content services, such as online provider under this Directive audio and video streaming shall cover information society services, for the same service providers one of the main audiences. The services covered purposes of which is to store and by this intervention are those give access to the public or to the main or one of the main stream significant amounts of purposes of which is to provide copyright protected content access to a large amount of uploaded / made available by its copyright-protected content users, and that optimise content, uploaded by their users with and promote for profit making the purpose of obtaining profit purposes, including amongst therefrom, either directly or others displaying, tagging, indirectly, by organising it and curating, sequencing, the promoting it in order to attract uploaded works or other subjectmore audiences. Organising matter, irrespective of the means and promoting content involves used therefor, and therefore act for example indexing the in an active way. As a content, presenting it in a consequence, they cannot benefit certain manner and

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from the liability exemption categorising it, as well as using provided for in Article 14 of targeted promotion on it. The Directive 2000/31/EC i. The definition does not include definition of online content services whose main purpose is sharing service providers under not to provide access to this Directive does not cover copyright protected content microenterprises and small sized with the purpose of obtaining enterprises within the meaning profit from this activity. These of Title I of the Annex to include, for instance, electronic Commission Recommendation communication services within 2003/361/EC and service the meaning of Regulation providers that act in a non 2015/2120/EU, including commercial purpose capacity internet access providers, as such as online encyclopaedia, well as providers of cloud and providers of online services services which allow users, to where the content is uploaded upload content for their own with the authorisation of all right use, such as cyberlockers, or holders concerned, such as online marketplaces whose educational or scientific main activity is online retail repositories. Providers of cloud and not giving access to services for individual use which copyright protected content. do not provide direct access to Nor does this definition cover the public, open source software websites which store and developing platforms, and online provide access to content for market places whose main non-for-profit purposes, such as activity is online retail of online encyclopaedias, scientific physical goods, should not be or educational repositories or considered online content open source software sharing service providers within developing platforms which do

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the meaning of this Directive. 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

facilitate copyright piracy.

• 78. 

  (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.

• 79. 

  (38) Where information society (38) Where information (38) This Directive clarifies service providers store and society Online content sharing under which conditions the

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provide access to the public to service providers store and Where information copyright protected works or provide access to the public to society online content sharing other subject-matter uploaded by copyright protected works or service providers store and their users, thereby going beyond other subject-matter uploaded by provide access to copyright the mere provision of physical their users, thereby going beyond protected works or other subjectfacilities and performing an act of the mere provision of physical matter uploaded by their users, communication to the public, they facilities and performing perform thereby going beyond the mere are obliged to conclude licensing an act of communication to the provision of physical facilities agreements with rightholders, public, they are obliged to and and performing are engaging in unless they are eligible for the therefore are responsible for an act of communication to the liability exemption provided in their content and should public or making available to Article 14 of Directive therefore conclude fair and the public within the meaning 2000/31/EC of the European appropriate licensing agreements of Article 3(1) and (2) of Parliament and of the Council 13 . with rightholders, unless they are Directive 2001/29/EC i they are eligible for. Where licensing obliged to conclude licensing agreements are concluded, they agreements with rightholders, should also cover, to the same unless they are eligible for the extent and scope, the liability liability exemption provided in exemption provided in of users Article 14 of Directive when they are acting in a non 2000/31/EC of the European commercial capacity. In Parliament and of the Council. It accordance with Article 14 of does not change the concept of Directive 2000/31/EC i of the communication to the public or European Parliament and of the of making available to the Council 11(2a) the responsibility public under Union law nor

13 Directive 2000/31/EC i 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).

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of online content sharing does it affect the possible providers pursuant to Article 13 application of Article 3(1) and does not extend to acts of (2) of Directive 2001/29/EC i to hyperlinking in respect of press other services using copyrightpublications. The dialogue protected content. 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.

• 80. 

  In respect of Article 14, it is Deleted Deleted, partly moved to necessary to verify whether the recital (37a) Council's text – see service provider plays an active row 77

  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.

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• 81. 

  In order to ensure the functioning Deleted Deleted, partly moved to of any licensing agreement, recital (38c) Council's text – see information society service row 84

  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 i.

• 82. 

  (38a) [Renumbered - in ST

  9134/18 recital 38(b)]

  When online content sharing service providers communicate to the public, they should not benefit from the limited liability

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provided for in Article 14 of Directive 2000/31/EC i 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.

• 83. 

  (38b) [Renumbered - in ST

  9134/18 recital (38c)]

  Taking into account the fact that online content sharing service providers give access to 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

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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 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

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expeditiously to remove or disable access to these and make their best efforts to prevent their future availability.

84.

(38c) [Renumbered - in ST 9134/18 recital (38ca)]

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 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

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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 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

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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 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.

• 85. 

  (38d) Where online content sharing service providers

  obtain authorisations, including via licensing agreements, for the use on the service of content uploaded by the users of the

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services, these authorisations should also cover the copyright relevant acts in respect of uploads by the users but only in cases where the users act in their private capacity and for non-commercial purposes, such as sharing their content without any profit making purpose.

• 86. 

  (39) Collaboration between (39) Collaboration between (39) Moved up to information society service information society Member recital (38c)[which was providers storing and providing States should provide that where recital (38ca) in ST access to the public to large right holders do not wish to 9134/18]

  amounts of copyright protected conclude licensing agreements, works or other subject-matter online content sharing service uploaded by their users and providers storing and providing rightholders is essential for the access to the public to large functioning of technologies, such amounts of copyright and right as content recognition holders should cooperate in good technologies. In such cases, faith in order to ensure that rightholders should provide the unauthorised protected works or necessary data to allow the other subject matter uploaded by, services to identify their content are not available on their users and the services should be and rightholders is essential for transparent towards rightholders the functioning of technologies, with regard to the deployed such as content recognition

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technologies, to allow the technologies. In such cases, assessment of their rightholders should provide the appropriateness. The services necessary data to allow the should in particular provide services. Cooperation between rightholders with information on online to identify their content the type of technologies used, the and the services should be way they are operated and their transparent towards rightholders success rate for the recognition of with regard to the deployed rightholders' content. Those technologies, to allow the technologies should also allow assessment of their rightholders to get information appropriateness. The services from the information society should in particular provide service providers on the use of rightholders with information on their content covered by an the type of technologies used, the agreement. 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 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.

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• 87. 

  (39a) Members States should (39a) [Renumbered - in ST ensure that online content 9134/18 recital (39b)] sharing service providers

  referred to in paragraph 1 put in The measures taken by the place effective and expeditious online content sharing service complaints and redress providers should be without mechanisms that are available to prejudice to the application of users in case the cooperation exceptions and limitations to referred to in paragraph 2a leads copyright, including in to unjustified removals of their particular those which content. Any complaint filed guarantee the freedom of under such mechanisms should expression of users. For that be processed without undue purpose the service providers delay. Right holders should should put in place mechanisms reasonably justify their decisions allowing users to complain to avoid arbitrary dismissal of about the blocking or removal complaints. Moreover, in of uploaded content that could accordance with Directive benefit from an exception or 95/46/EC, Directive 2002/58/EC i limitation to copyright. Replies and the General Data Protection to the users’ complaints should Regulation, the cooperation be provided in a timely manner. should not lead to any To make these mechanisms identification of individual users function, cooperation from nor the processing of their rightholders is needed, in personal data. Member States particular with regard to the should also ensure that users assessment of the complaints

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have access to an independent submitted and justifications for body for the resolution of the removal of users’ content. disputes as well as to a court or Member States should remain another relevant judicial free to put in place independent authority to assert the use of an authorities for assessing the exception or limitation to complaints submitted by users copyright rules. 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.

• 88. 

  (39b) As soon as possible after (39b) [Renumbered - in ST the entry into force of this 9134/18 recital (39c)]

  Directive, the Commission and

  the Member States should In order to foster best practices organise dialogues between with regard to the measures to stakeholders to harmonise and to be taken by online content define best practices. They sharing service providers to should issue guidance to ensure avoid liability for unauthorised the functioning of licensing copyright acts, stakeholder agreements and on cooperation dialogues should be encouraged between online content sharing by the Member States and the service providers and right Commission. In order to give holders for the use of their works more clarity to the parties some or other subject matter within the guidance should also be meaning of this Directive. When provided by the Commission on defining best practices, special the implementation of the

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account should be taken of measures including as to which fundamental rights, the use of measures could be considered exceptions and limitations. to be proportionate for Special focus should also be different types of content. For given to ensuring that the burden the purposes of the guidance on SMEs remains appropriate the Commission should consult and that automated blocking of relevant stakeholders, including content is avoided. user organisations and technology providers, and take into account the developments on the market.

• 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.

• 90. 

  (39d) As a principle, rightholders should always

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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 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.

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• 91. 

  (40) Certain rightholders such as (40) Certain rightholders such as (40) Certain rightholders such as authors and performers need authors and performers need authors Authors and performers information to assess the information to assess the need information to assess the

  economic value of their rights economic value of their rights economic value of their rights which are harmonised under which are harmonised under which are harmonised under Union law. This is especially the Union law. This is especially the Union law. This is especially the case where such rightholders case where such rightholders case where such rightholders grant a licence or a transfer of grant a licence or a transfer of natural persons grant a licence rights in return for remuneration. rights in return for remuneration. or a transfer of rights for the As authors and performers tend to As authors and performers tend to purposes of exploitation in be in a weaker contractual be in a weaker contractual return for remuneration. This position when they grant licences position when they grant licences need does not arise when the or transfer their rights, they need or transfer their rights, they need contractual counterpart acts as information to assess the information to assess the end user of the work and does continued economic value of their continued economic value of their not exploit the work or rights, compared to the rights, compared to the performance itself, which could remuneration received for their remuneration received for their among others be the case in licence or transfer, but they often licence or transfer, but they often some employment contracts. face a lack of transparency. face a lack of transparency. Additionally, this need does not Therefore, the sharing of adequate Therefore, the sharing of adequate arise when the exploitation has information by their contractual comprehensive and relevant ceased, or when the author or counterparts or their successors in information by their contractual performer has granted licence title is important for the counterparts or their successors in to the general public without transparency and balance in the title is important for the remuneration. system that governs the transparency and balance in the

  remuneration of authors and system that governs the [Last two phrases of recital (40) performers. remuneration of authors and of the COM proposal were moved performers. The information that to new recital (40a) of Council's

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authors and performers are text - see following row 92] 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]

• 92. 

  (40a) 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

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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 counterparts of authors and performers should provide information available to them on all modes of exploitation and on all relevant revenues with a regularity which is appropriate in the relevant sector, but at least annually. The processing of personal data, such as

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contact details and information on remuneration, that are 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).

• 93. 

  (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 exploit the rights, this Directive entitles authors and performers, in cases where the contractual partner has provided the information

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available to them, but the received information is not sufficient to assess the economic value of their rights, to request additional relevant information on the exploitation of the rights. This can be ensured either directly or through the contractual counterparts of authors and performers. Member States should have the option, in compliance with Union law, to provide for further measures through national provisions to ensure transparency for authors and performers.

• 94. 

  (41) When implementing (41) When implementing (41) When implementing transparency obligations, the transparency obligations, the transparency obligations, specificities of different content specificities of different content Member States should take into sectors and of the rights of the sectors and of the rights of the account the specificities of authors and performers in each authors and performers in each different content sectors and, sector should be considered. sector should be considered. such as those of the rights of the Member States should consult all Member States should consult all authors and performers in relevant stakeholders as that relevant stakeholders as that eachmusic sector should be should help determine sectorshould help determine sectorconsidered. Member States specific requirements. Collective specific requirements. Collective should consult, the audiovisual bargaining should be considered bargaining should be considered sector and the publishing sector

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as an option to reach an as an option to reach an and all relevant stakeholders as agreement between the relevant agreement between the relevant that should help determinebe stakeholders regarding stakeholders regarding involved when determining transparency. To enable the transparency. To enable the such sector-specific adaptation of current reporting adaptation of current reporting requirements. Where relevant, practices to the transparency practices to the transparency the significance of the obligations, a transitional period obligations, a transitional period contribution of authors and should be provided for. The should be provided for. The performers to the overall work transparency obligations do not transparency obligations do not or performance should also be need to apply to agreements need to apply to agreements considered. Collective concluded with collective concluded with collective bargaining should be considered management organisations as management organisations as as an option to reach an those are already subject to those are already subject to agreement between the relevant transparency obligations under transparency obligations under stakeholders regarding Directive 2014/26 i/EU. Directive 2014/26 i/EU. 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

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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 2014/26 i/EU.

• 95. 

  (42) Certain contracts for the (42) Certain contracts for the (42) Certain contracts for the exploitation of rights harmonised exploitation of rights harmonised exploitation of rights harmonised at Union level are of long at Union level are of long at Union level are of long

  duration, offering few duration, offering few duration, offering few possibilities for authors and possibilities for authors and possibilities for authors and performers to renegotiate them performers to renegotiate them performers to renegotiate them with their contractual counterparts with their contractual counterparts with their contractual or their successors in title. or their successors in title. counterparts or their successors in Therefore, without prejudice to Therefore, without prejudice to title. when the economic value the law applicable to contracts in the law applicable to contracts in of the rights turns out to be Member States, there should be a Member States, there should be a significantly higher than remuneration adjustment remuneration adjustment initially estimated. Therefore, mechanism for cases where the mechanism for cases where the without prejudice to the law remuneration originally agreed remuneration originally agreed applicable to contracts in Member under a licence or a transfer of under a licence or a transfer of States, there should be a rights is disproportionately low rights is disproportionately low remuneration adjustment compared to the relevant revenues compared to the relevant direct mechanism should be provided and the benefits derived from the and indirect revenues and the for cases where the remuneration exploitation of the work or the benefits derived from the originally agreed under a licence fixation of the performance, exploitation of the work or the or a transfer of rights isclearly including in light of the fixation of the performance, becomes disproportionately low

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transparency ensured by this including in light of the compared to the relevant Directive. The assessment of the transparency ensured by this revenues and the benefits derived situation should take account of Directive. The assessment of the from the subsequent exploitation the specific circumstances of each situation should take account of of the work or the fixation of the case as well as of the specificities the specific circumstances of each performance, including in light of and practices of the different case, as well as of the specificities by the transparency ensured by content sectors. Where the parties and practices of the different this Directive.contractual do not agree on the adjustment of content sectors as well as of the counterpart of the author or the remuneration, the author or nature and the contribution to performer. The assessment of performer should be entitled to the work of the author or the situation should take account bring a claim before a court or performer. Such a contract of the specific circumstances of other competent authority. adjustment request could also be each case, including the made by the organisation contribution of the author or representing the author or performer, as well as of the performer on his or her behalf, specificities and remuneration unless the request would be practices of the different content detrimental to the interests of the sectors, and whether the author or performer. Where the contract is based on a collective parties do not agree on the bargaining agreement. Where adjustment of the remuneration, the parties do not agree on the the author or performer or a adjustment of the remuneration, representative organisation the author or performer should be appointed by them should on entitled to bring a claim before a request by the author or court or other competent performer be entitled to bring a authority. This mechanism claim before a court or other should not apply to contracts competent authority. concluded by entities defined in Article 3(a) and (b) of Directive 2014/26/EU or by other entities

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subject to the national rules implementing Directive 2014/26/UE.

• 96. 

  (43) Authors and performers are (43) Authors and performers are (43) Authors and performers are often reluctant to enforce their often reluctant to enforce their often reluctant to enforce their

  rights against their contractual rights against their contractual rights against their contractual partners before a court or tribunal. partners before a court or tribunal. partners before a court or tribunal. Member States should therefore Member States should therefore Member States should therefore provide for an alternative dispute provide for an alternative dispute provide for an alternative dispute resolution procedure that resolution procedure that resolution procedure that addresses claims related to addresses claims related to addresses claims by authors and obligations of transparency and obligations of transparency and performers or their the contract adjustment the contract adjustment representatives on their behalf mechanism. mechanism. Representative related to obligations of organisations of authors and transparency and the contract performers, including collective adjustment mechanism. For that management organisations and purpose, Member States may trade unions, should be able to either create a new body or initiate such procedures at the mechanism or rely on an request of authors and existing one that fulfils the performers. Details about who conditions established by this initiated the procedure should Directive irrespective of remain undisclosed. 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

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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.

• 97. 

  (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

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be possible when the transferee 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 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 time following the conclusion of

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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.

• 98. 

  (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.

• 99. 

  (43a) The obligations laid down in Articles 14 and 15 of this

  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

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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 Council 14 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 application of Articles 14 and 15, as implemented in the Member State of the forum.

• 100. 

  (44) The objectives of this (44) The objectives of this (44) The objectives of this

  Directive, namely the Directive, namely the Directive, namely the modernisation of certain aspects modernisation of certain aspects modernisation of certain aspects of the Union copyright of the Union copyright of the Union copyright

14 Regulation (EC) No 593/2008 i 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).

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framework to take account of framework to take account of framework to take account of technological developments and technological developments and technological developments and new channels of distribution of new channels of distribution of new channels of distribution of protected content in the internal protected content in the internal protected content in the internal market, cannot be sufficiently market, cannot be sufficiently market, cannot be sufficiently achieved by Member States but achieved by Member States but achieved by Member States but can rather, by reason of their can rather, by reason of their can rather, by reason of their scale, effects and cross-border scale, effects and cross-border scale, effects and cross-border dimension, be better achieved at dimension, be better achieved at dimension, be better achieved at Union level. Therefore, the Union Union level. Therefore, the Union Union level. Therefore, the Union may adopt measures in may adopt measures in may adopt measures in accordance with the principle of accordance with the principle of accordance with the principle of subsidiarity as set out in Article 5 subsidiarity as set out in Article 5 subsidiarity as set out in Article 5 of the Treaty on European Union. of the Treaty on European Union. of the Treaty on European Union. In accordance with the principle In accordance with the principle In accordance with the principle of proportionality, as set out in of proportionality, as set out in of proportionality, as set out in that Article, this Directive does that Article, this Directive does that Article, this Directive does not go beyond what is necessary not go beyond what is necessary not go beyond what is necessary in order to achieve those in order to achieve those in order to achieve those objectives. objectives. objectives.

• 101. 

  (45) This Directive respects the (45) This Directive respects the (45) This Directive respects the fundamental rights and observes fundamental rights and observes fundamental rights and observes the principles recognised in the principles recognised in the principles recognised in

  particular by the Charter of particular by the Charter of particular by the Charter of Fundamental Rights of the Fundamental Rights of the Fundamental Rights of the European Union. Accordingly, European Union. Accordingly, European Union. Accordingly, this Directive should be this Directive should be this Directive should be interpreted and applied in interpreted and applied in interpreted and applied in

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accordance with those rights and accordance with those rights and accordance with those rights and principles. principles. principles.

• 102. 

  (46) Any processing of personal (46) Any processing of personal (46) Any processing of personal data under this Directive should data under this Directive should data under this Directive should respect fundamental rights, respect fundamental rights, respect fundamental rights,

  including the right to respect for including the right to respect for including the right to respect for private and family life and the private and family life and the private and family life and the right to protection of personal right to protection of personal right to protection of personal data under Articles 7 and 8 of the data under Articles 7 and 8 of the data under Articles 7 and 8 of the Charter of Fundamental Rights of Charter of Fundamental Rights of Charter of Fundamental Rights of the European Union and must be the European Union and must be the European Union and must be in compliance with in compliance with Directive in compliance with Directive 95/46/EC i of the European 95/46/EC of the European

  Directive 95/46/EC i of the Parliament and of the Council 15 Parliament and of the Council 15 European Parliament and of the Regulation (EU) 2016/679 and and Directive 2002/58/EC i of the Council 15 and Directive Directive 2002/58/EC i of the European Parliament and of the 2002/58/EC of the European European Parliament and of the Council 16 . Parliament and of the Council 16 . Council 16 The provisions of the

15 Directive 95/46/EC i 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 i (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1–88).

16 Directive 2002/58/EC i 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 i and 2009/136/EC, the “e-Privacy Directive”.

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General Data Protection Regulation, including the "right to be forgotten" should be respected.

• 103. 

  (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 should be promoted.

• 104. 

  (47) In accordance with the Joint (47) In accordance with the Joint (47) In accordance with the Joint

  Political Declaration of 28 Political Declaration of 28 Political Declaration of 28 September 2011 of Member September 2011 of Member September 2011 of Member States and the Commission on States and the Commission on States and the Commission on explanatory documents 17 , explanatory documents 17 , explanatory documents 17 , Member States have undertaken Member States have undertaken Member States have undertaken to accompany, in justified cases, to accompany, in justified cases, to accompany, in justified cases, the notification of their the notification of their the notification of their transposition measures with one transposition measures with one transposition measures with one or more documents explaining the or more documents explaining the or more documents explaining the relationship between the relationship between the relationship between the

12513/18 BM/np 124

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components of a directive and the components of a directive and the components of a directive and the corresponding parts of national corresponding parts of national corresponding parts of national transposition instruments. With transposition instruments. With transposition instruments. With regard to this Directive, the regard to this Directive, the regard to this Directive, the legislator considers the legislator considers the legislator considers the transmission of such documents transmission of such documents transmission of such documents to be justified, to be justified, to be justified,

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Proposal for a directive of the European Parliament and of the Council

on copyright in the Digital Single Market

COM (2016) 593 final i - 2016/0280 (COD) i

PART 2: ARTICLES

Note:

Differences between the EP's position and the Commission's proposal are highlighted in bold /italic. Deletions are marked with strikethrough.

Differences between the Council's position and the Commission's proposal are highlighted in bold/underlined.

Deletions are marked with strikethrough.

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• 105. 

  TITLE I TITLE I TITLE I

  GENERAL PROVISIONS GENERAL PROVISIONS GENERAL PROVISIONS

• 106. 

  Art.1, Article 1 Article 1 Article 1

  Subject matter and scope Subject matter and scope Subject matter and scope title

• 107. 

  Art. 1, para 1 1. This Directive lays 1. This Directive lays down 1. This Directive lays down rules which aim at rules which aim at further down rules which aim at further harmonising the harmonising the Union law further harmonising the Union law applicable to applicable to copyright and Union law applicable to

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copyright and related rights in related rights in the copyright and related rights in the framework of the internal framework of the internal the framework of the internal market, taking into account in market, taking into account in market, taking into account in particular digital and crossparticular digital and crossparticular digital and crossborder uses of protected border uses of protected border uses of protected content. It also lays down content. It also lays down content. It also lays down rules on exceptions and rules on exceptions and rules on exceptions and limitations, on the facilitation limitations, on the facilitation limitations, on the facilitation of licences as well as rules of licences as well as rules of licences as well as rules aiming at ensuring a wellaiming at ensuring a wellaiming at ensuring a wellfunctioning marketplace for functioning marketplace for functioning marketplace for the exploitation of works and the exploitation of works and the exploitation of works and other subject-matter. other subject-matter. other subject-matter.

• 108. 

  Art. 1, para 2 2. Except in the cases 2. Except in the cases 2. Except in the cases referred to in Article 6, this referred to in Article 6, this referred to in Article 6 17, this Directive shall leave intact Directive shall leave intact Directive shall leave intact and shall in no way affect and shall in no way affect and shall in no way affect existing rules laid down in existing rules laid down in existing rules laid down in the Directives currently in the Directives currently in the Directives currently in force in this area, in particular force in this area, in particular force in this area, in particular Directives 96/9/EC i, Directives 96/9/EC i, Directives 96/9/EC i,

  2001/29/EC, 2006/115/EC, 2000/31/EC, 2001/29/EC, 2000/31/EC, 2001/29/EC, 2009/24/EC, 2012/28/EU and 2006/115/EC, 2009/24/EC, 2006/115/EC, 2009/24/EC, 2014/26/EU. 2012/28/EU and 2014/26/EU. 2012/28/EU and 2014/26/EU.

• 109. 

  Art. 2, title Article 2 Article 2 Article 2

  Definitions Definitions Definitions

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• 110. 

  Art. 2, For the purposes of this For the purposes of this For the purposes of this introductory Directive, the following Directive, the following Directive, the following part definitions shall apply: definitions shall apply: definitions shall apply:

• 111. 

  Art. 2, para 1, (1) ‘research organisation’ (1) ‘research organisation’ (1) ‘research organisation’ introductory means a university, a research means a university, including means a university, a

  part institute or any other its libraries, a research research institute or any other organisation the primary goal institute or any other organisationan entity, the

  of which is to conduct organisation the primary goal primary goal of which is to scientific research or to of which is to conduct conduct scientific research or conduct scientific research scientific research or to to conduct scientific research and provide educational conduct scientific research and provide educational services: and provide educational services: involving also the services: conduct of scientific research:

• 112. 

  Art. 2, para 1, (a) on a non-for-profit (a) on a non-for-profit (a) on a non-for-profit point (a) basis or by reinvesting all the basis or by reinvesting all the basis or by reinvesting all the profits in its scientific profits in its scientific profits in its scientific

  research; or research; or research; or

• 113. 

  Art. 2, para 1, (b) pursuant to a public (b) pursuant to a public (b) pursuant to a public point (b) interest mission recognised interest mission recognised interest mission recognised by a Member State; by a Member State; by a Member State;

• 114. 

  Art. 2, para 1, in such a way that the access in such a way that the access in such a way that the access closing phrase to the results generated by the to the results generated by the to the results generated by the scientific research cannot be scientific research cannot be scientific research cannot be

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enjoyed on a preferential enjoyed on a preferential enjoyed on a preferential basis by an undertaking basis by an undertaking basis by an undertaking exercising a decisive exercising a significant exercising a decisive influence upon such influence upon such influence upon such organisation; organisation; organisation;

• 115. 

  Art. 2, para 2 (2) ‘text and data mining’ (2) 'text and data mining' (2) ‘text and data mining’ means any automated means any automated means any automated

  analytical technique aiming analytical technique which analytical technique aiming to analyse text and data in analyses works and other to analyse text and data in digital form in order to subject matter in digital form digital form in order to generate information such as in order to generate generate information such as patterns, trends and information, including, but patterns, trends and correlations; not limited to, patterns, trends correlations; and correlations.

• 116. 

  Art. 2, para 3 (3) ‘cultural heritage (3) ‘cultural heritage (3) ‘cultural heritage institution’ means a publicly institution’ means a publicly institution’ means a publicly accessible library or museum, accessible library or museum, accessible library or museum, an archive or a film or audio an archive or a film or audio an archive or a film or audio heritage institution; heritage institution; heritage institution;

• 117. 

  Art. 2, para 4 (4) ‘press publication’ (4) ‘press publication’ means (4) ‘press publication’ means a fixation of a a fixation by publishers or means a fixation of a

  collection of literary works of news agencies of a collection collection composed mainly a journalistic nature, which of literary works of a of literary works of a may also comprise other journalistic nature, which journalistic nature, which : works or subject-matter and may also comprise other

  constitutes an individual item works or subject-matter and [remaining part of this

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within a periodical or constitutes an individual item pargraph was split up in regularly-updated publication within a periodical or points (a) to (d) - see under a single title, such as a regularly-updated publication following rows 118-121] newspaper or a general or under a single title, such as a special interest newspaper or a general or magazine, having the purpose special interest magazine, of providing information having the purpose of related to news or other providing information related topics and published in any to news or other topics and media under the initiative, published in any media under editorial responsibility and the initiative, editorial control of a service provider. 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;

• 118. 

  Art. 2, para 4, (a) may also point (a) compriseinclude other works or subject-matter and ;

  [See Article 2(4) of COM proposal and of EP text (row 117)]

• 119. 

  Art. 2, para 4, (b) constitutes an individual item within a

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    point (b) periodical or regularlyupdated publication under a single title, such as a

newspaper or a general or special interest magazine, ;

[See Article 2(4) of COM proposal and of EP text (row 117)]

• 120. 

  Art. 2, para 4, (c) has having the purpose point (c) of providing the general

  public with information related to news or other topics; and

  [See Article 2(4) of COM proposal and of EP text (row 117)]

• 121. 

  Art. 2, para 4, (d) is published in any point (d) 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)]

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• 122. 

  Art. 2, para (4a) ‘out of commerce work’

  4a, means: introductory part

• 123. 

  Art. 2, para (a) an entire work or other

  4a, point (a) subject matter in any version or manifestation that is no

  longer available to the public in a Member State through customary channels of commerce;

• 124. 

  Art. 2, para (b) a work or other subject

  4a, point (b) 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;

• 125. 

  Art. 2, para 4b (4b) ‘online content (5) ‘online content

  (EP)/para 5 sharing service provider’ sharing service provider’ (Council) means a provider of an means a provider of an information society service information society service one of the main purposes of whose main or one of the which is to store and give main purposes is to store

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access to the public to and give the public access to a significant amount of a large amount of works or copyright protected works or other subject-matter other protected subjectuploaded by its users which matter uploaded by its users, it organises and promotes which the service optimises for profit-making purposes. and promotes for profit

making purposes. Providers of services such Microenterprises and smallas non-for-profit online sized enterprises within the encyclopaedias, non-formeaning of Title I of the profit educational and Annex to Commission scientific repositories, non Recommendation for-profit open source 2003/361/EC and services software developing acting in a non-commercial platforms, as well as purpose capacity such as internet access service online encyclopaedia, and providers, online providers of online services marketplaces and providers where the content is of cloud services which uploaded with the allow users, including authorisation of all right businesses for their internal holders concerned, such as purposes, to upload content educational or scientific for their own use shall not repositories, shall not be be considered online considered online content content sharing service sharing service providers providers within the within the meaning of this meaning of this Directive;

Directive. Providers of cloud

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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;

• 126. 

  Art. 2, para 4c (4c) ‘information society (6) ‘information society

  (EP)/para 6 service’ means a service service’ means a service (Council) within the meaning of point within the meaning of (b) of Article 1(1) of Article 1(1)(b) of Directive Directive (EU) 2015/1535 of (EU) 2015/1535. the European Parliament

1a

and of the Council ;

___________

1a 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

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technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1).

• 127. 

  Art. 2, para 4d (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.

• 128. 

  TITLE II TITLE II TITLE II

  MEASURES TO ADAPT MEASURES TO ADAPT MEASURES TO ADAPT EXCEPTIONS AND EXCEPTIONS AND EXCEPTIONS AND LIMITATIONS TO THE LIMITATIONS TO THE LIMITATIONS TO THE DIGITAL AND CROSS- DIGITAL AND CROSS- DIGITAL AND CROSS- BORDER ENVIRONMENT BORDER ENVIRONMENT BORDER ENVIRONMENT

• 129. 

  Art. 3, Article 3 Article 3 Article 3

  Text and data mining Text and data mining Text and data mining for the

  title purposes of scientific

  research

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• 130. 

  Art. 3, para 1 1. Member States shall 1. Member States shall 1. .Member States shall provide for an exception to provide for an exception to provide for an exception to the rights provided for in the rights provided for in the rights provided for in

  Article 2 of Directive Article 2 of Directive Article 2 of Directive 2001/29/EC i, Articles 5(a) and 2001/29/EC, Articles 5(a) and 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC i and 7(1) of Directive 96/9/EC i and 7(1) of Directive 96/9/EC i and Article 11(1) of this Directive Article 11(1) of this Directive Article 11(1) of this Directive for reproductions and for reproductions and for reproductions and extractions made by research extractions made by research extractions made by research organisations in order to carry organisations in order to carry organisations and cultural out text and data mining of out text and data mining of heritage institutions in order works or other subject-matter works or other subject-matter to carry out text and data to which they have lawful to which they have lawful mining of works or other access for the purposes of access research subject-matter to which they scientific research. organisations have lawful have lawful access, for the access and made in order to purposes of scientific carry out text and data research. 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

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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.

• 131. 

  Art. 3, para 1a 1a. Reproductions and 1a. Copies of works or other extractions made for text and subject-matter made in

  data mining purposes shall compliance with be stored in a secure paragraph 1 shall be manner, for example by stored with an trusted bodies appointed for appropriate level of this purpose. security and not be retained for longer than necessary for achieving the purposes of scientific research.

• 132. 

  Art. 3, para 2 2. Any contractual 2. Any contractual 2. [Moved to Article 6(1)] provision contrary to the provision contrary to the

  exception provided for in exception provided for in paragraph 1 shall be paragraph 1 shall be unenforceable. unenforceable.

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[See Council’s Article 6(1) (row 155)]

• 133. 

  Art. 3, para 3 3. Rightholders shall be 3. Rightholders shall be 3. Rightholders shall be allowed to apply measures to allowed to apply measures to allowed to apply measures to ensure the security and ensure the security and ensure the security and

  integrity of the networks and integrity of the networks and integrity of the networks and databases where the works or databases where the works or databases where the works or other subject-matter are other subject-matter are other subject-matter are hosted. Such measures shall hosted. Such measures shall hosted. Such measures shall not go beyond what is not go beyond what is not go beyond what is necessary to achieve that necessary to achieve that necessary to achieve that objective. objective. objective.

• 134. 

  Art. 3, para 4 4. Member States shall 4. Member States shall 4. Member States shall encourage rightholders and encourage rightholders and encourage rightholders and, research organisations to research organisations to research organisations and define commonly-agreed best define commonly-agreed best cultural heritage

  practices concerning the practices concerning the institutions to define application of the measures application of the measures commonly-agreed best referred to in paragraph 3. referred to in paragraph practices concerning the 3.may continue to provide application of the obligation text and data mining and measures referred to exceptions in accordance respectively in paragraphs 1a with point (a) of Article 5(3) and 3. of Directive 2001/29/EC i.

• 135. 

  Art. 3a, title Article 3a Article 3a

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Optional exception or Optional exception or limitation for text and data limitation for text and data

mining mining

• 136. 

  Art. 3a, para 1 1. Without prejudice to 1. Without prejudice to

  Article 3 of this Directive, Article 3 of this Directive Member States may provide Member States may for an exception or a provide for an exception or limitation to the rights a limitation to the rights provided for in Article 2 of provided for in Article 2 of Directive 2001/29/EC i, Directive 2001/29/EC i, Articles 5(a) and 7(1) of Articles 5(a) and 7(1) of Directive 96/9/EC i and Directive 96/9/EC i and Article 11(1) of this Directive Article 11(1) of this for reproductions and Directive for temporary extractions of lawfully reproductions and accessible works and other extractions of lawfully subject-matter that form a accessible works and other part of the process of text subject-matter that form a and data mining, provided part of the process of text that the use of works and and data mining. other subject matter referred to therein has not been expressly reserved by their rightholders, including by machine readable means.

• 137. 

  Art. 3a, para 2 2. Reproductions and

ANNEX ECOMP.3.B EN

Row Location COMMISSION EP TEXT PROPOSAL P8_TA-PROV(2018)0337 COUNCIL TEXT POSSIBLE COMPROMISE

COM(2016)593 i A8-0245/2018 9134/18 SOLUTION

    (EP) extractions made pursuant to paragraph 1 shall not be

used for purposes other than text and data mining.

• 138. 

  Art. 3a, para 2 2. The exception or

  (Council) 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.

  [See para.1 of EP text (row 136)]

• 139. 

  Art. 3a, para 3 3. Member States may continue to provide text and data mining exceptions in accordance with point (a) of Article 5 (3) of Directive 2001/29/EC.