174 Amendments of Pervenche BERÈS related to 2016/0280(COD)
Amendment 13 #
Proposal for a directive
Recital 3
Recital 3
(3) Rapid technological developments continue to transform the way works and other subject-matter are created, produced, distributed and exploited. New business models and new actors continue to emerge. The objectives and the principles laid down by the Union copyright framework remain sound. However, legal uncertainty remains, for both rightholders and users, as regards certain uses, including cross-border uses, of works and other subject-matter in the digital environment. As set out in the Communication of the Commission entitled ‘Towards a modern, more European copyright framework’26 , in some areas it is necessary to adapt and supplement the current Union copyright framework. The Commission should investigate all possible measures to prevent the illegal use of copyright protected visual and audio-visual content for commercial purposes, through for example embedding or framing techniques. In addition, this Directive provides for rules to adapt certain exceptions and limitations to digital and cross-border environments, as well as measures to facilitate certain licensing practices as regards the dissemination of out-of- commerce works and the online availability of audiovisual works on video- on-demand platforms with a view to ensuring wider access to content. In order to achieve a well-functioning marketplace for copyright, there should also be rules on rights in publications, on the use of works and other subject-matter by online service providers storing and giving access to user uploaded content and on the transparency of authors' and performers' contracts. _________________ 26 COM(2015) 626 final.
Amendment 19 #
Proposal for a directive
Recital 8
Recital 8
(8) New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images or data, generally known as text and data mining. Those technologies allow researchers to process large amounts of information to gain new knowledge and discover new trends. Whilst text and data mining technologies are prevalent across the digital economy, there is widespread acknowledgment that text and data mining can in particular benefit the research community and in so doing encourage innovation, growth and jobs. However, in the Union, research organisations such as universities and research institutes are confronted with legal uncertainty as to the extent to which they can perform text and data mining of content. In certain instances, text and data mining may involve acts protected by copyright and/or by the sui generis database right, notably the reproduction of works or other subject- matter and/or the extraction of contents from a database. Where there is no exception or limitation which applies, an authorisation to undertake such acts would be required from rightholders. Text and data mining may also be carried out in relation to mere facts or data which are not protected by copyright and in such instances no authorisation would be required.
Amendment 27 #
Proposal for a directive
Recital 10
Recital 10
(10) This legal uncertainty should be addressed by providing for a mandatory exception to the right of reproduction and also to the right to prevent extraction from a database. The new exception should be without prejudice to the existing mandatory exception on temporary acts of reproduction laid down in Article 5(1) of Directive 2001/29, which should continue to apply to text and data mining techniques which do not involve the making of copies going beyond the scope of that exception. Research organisations should also benefit from the exception when they engage into public-private partnerships.
Amendment 39 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37a) Despite the fact that more creative content is being consumed today than ever before on services such as user uploaded content platforms and content aggregation services, yielding significant profits, the creative sectors have not seen a comparable increase in consumption. The value of cultural and creative works has been diverted away from the authors, artists, producers and others right holders, generating an unsustainable "value gap". This transfer of value, due to the lack of clarity regarding the status of these online services under copyright and e-commerce law, undermines the efficiency of the online market, distorts competition and drives down the overall value of cultural content online. It also limits consumer choice of new and innovative legitimate services in the European Digital Single Market and puts at risk cultural and creative industries that create significant jobs and growth for the Union economy, as underlined by the European Parliament resolution of 13 December 2016 on a coherent EU policy for cultural and creative industries 1a. _________________ 1a Not yet published in the Official Journal.
Amendment 41 #
Proposal for a directive
Recital 37 b (new)
Recital 37 b (new)
(37b) Digital platforms are means of providing wider access to cultural and creative works and offer great opportunities for cultural and creative industries to develop new business models. Consideration should to be made of how this process can function with more legal certainty and fairness and respect for right holders. Importance of transparency and of ensuring a level playing filed is necessary. In this regard, protection of right holders within the copyright and intellectual property framework is necessary in order to ensure recognition of values and stimulation of innovation, creativity, investment, to guarantee the success of a Digital Single Market, offering all diverse and quality cultural and creative works.
Amendment 43 #
Proposal for a directive
Recital 37 c (new)
Recital 37 c (new)
(37c) This is why liability exemptions can only apply to genuinely neutral and passive online service providers, and not to services that play an active role in distributing, promoting and monetising content at the expense of creators.
Amendment 47 #
Proposal for a directive
Recital 38 – paragraph 1
Recital 38 – paragraph 1
Where information society service providers store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities andinstallations and thus performing an act of communication to the public and/or making available to the public, as well as an act of reproduction, they are obliged to conclude licensing agreements with rightholders who so request, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council34 . In the interests of ensuring legal certainty for the users of services, these agreements should cover the liability of the latter when they are not acting professionally for acts falling under Articles 2 and 3 of Directive 2001/29/EC that they perform. __________________ 34 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ L 178, 17.7.2000, p. 1–16).
Amendment 49 #
Proposal for a directive
Recital 19
Recital 19
(19) Different approaches in the Member States for acts of preservation by cultural heritage institutions hamper cross- border cooperation and the sharing of means of preservation by cultural heritage institutions in the internal market, leading to an inefficient use of resources. Member States should facilitate the cross-border sharing of best-practice, new technologies and preservation techniques.
Amendment 56 #
Proposal for a directive
Recital 23
Recital 23
(23) Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of mechanism allowing for licences for out-of-commerce works to extend to the rights of rightholders that are noteither not represented or not adequately represented by the collective management organisation, in accordance to their legal traditions, practices or circumstances. Such mechanisms can include extended collective licensing and presumptions of representation.
Amendment 58 #
Proposal for a directive
Recital 25
Recital 25
(25) Considering the variety of works and other subject-matter in the collections of cultural heritage institutions, it is important that the licensing mechanisms introduced by this Directive are available and can be used in practice for different types of works and other subject-matter, including photographs, sound recordings and audiovisual works. In order to reflect the specificities of different categories 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. It is appropriate that Member States consult rightholders, cultural institutions, users and collective management organisations when doing so.
Amendment 62 #
Proposal for a directive
Recital 38 – paragraph 2
Recital 38 – paragraph 2
In respect of Article 14 of Directive 2000/31/EC, it is necessary to verify whether the service provider plays an active role, including by optimising the presentation of the uploaded works or subject-mattercontent provided by the service or promoting themat content, irrespective of the nature of the means used therefor.
Amendment 69 #
Proposal for a directive
Recital 38 – paragraph 3
Recital 38 – paragraph 3
In order to ensure the functioning of any licensing agreement, information society service providers storing and providing access to the public to large amounts of copyright protected works or other subject- matter uploaded by their users should take appropriate and proportionate measures to ensure protection of works or other subject-matter, such as implementing effective technologies. This obligation should also apply when the information society service providers are eligible for the liability exemption provided in Article 14 of Directive 2000/31/ECno request for a licensing agreement is addressed to the information society service providers who play an active role or when the information society service providers which are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC store and offer to the public a significant quantity of works or other subject-matter uploaded by their users.
Amendment 75 #
Proposal for a directive
Recital 3
Recital 3
(3) Rapid technological developments continue to transform the way works and other subject-matter are created, produced, distributed and exploited. New business models and new actors continue to emerge. The objectives and the principles laid down by the Union copyright framework remain sound. However, legal uncertainty remains, for both rightholders and users, as regards certain uses, including cross-border uses, of works and other subject-matter in the digital environment. As set out in the Communication of the Commission entitled ‘Towards a modern, more European copyright framework’26 , in some areas it is necessary to adapt and supplement the current Union copyright framework. TIn this ever-evoluting and mutating digital environment, the Commission has to diligently investigate all possible measures to prevent every kind of illegal use of copyright protected visual and audiovisual contents, aiming at commercial purposes, through abusing embedding or framing techniques. In addition, this Directive provides for rules to adapt certain exceptions and limitations to digital and cross-border environments, as well as measures to facilitate certain licensing practices as regards the dissemination of out-of- commerce works and the online availability of audiovisual works on video- on-demand platforms with a view to ensuring wider access to content. In order to achieve a well-functioning and fair marketplace for copyright, there should also be rules on rights in publications, on the use of works and other subject-matter by online service providers storing and giving access to user uploaded content and on the transparency of authors' and performers' contracts and of the accounting deriving from the exploitation of protected works according to those contracts. _________________ 26 COM(2015) 626 final.
Amendment 76 #
Proposal for a directive
Recital 3 a (new)
Recital 3 a (new)
(3 a) Despite the fact that more creative content is being consumed today than ever before, on services such as user- uploaded content platforms and content aggregation services, the creative sectors have not seen a comparable increase in revenues from this increase in consumption. The value of cultural and creative works has been diverted away from the users, authors, artists, producers and other rights holders generating an unsustainable "value gap". This transfer of value is creating an inefficient and unfair market, and threatens the long- term health of the EU's cultural and creative sectors and the success of the Digital Single Market, as far as there will be no successful European digital market without contents. This is why, amongst other, liability exemptions can only apply to genuinely neutral and passive online service providers, and not to services that play an active role in distributing, promoting and monetising content at the expense of creators.
Amendment 81 #
Proposal for a directive
Recital 35
Recital 35
(35) The protection granted to publishers of press publications under this Directive should not affect the rights of the authors and other rightholders in the works and other subject-matter incorporated therein, including as regards the extent to which authors and other rightholders can exploit their works or other subject-matter independently from the press publication in which they are incorporated. Therefore, publishers of press publications should not be able to invoke the protection granted to them against authors and other rightholders. This is without prejudice to contractual arrangements concluded between the publishers of press publications, on the one side, and authors and other rightholders, on the other side. Member States should ensure that a fair share of remuneration, derived from the use of the press publishers right, is attributed to journalists, authors and other rightsholders.
Amendment 83 #
Proposal for a directive
Recital 36 a (new)
Recital 36 a (new)
(36 a) Cultural and creative industries (CCIs) play a key role in reindustrialising Europe, are a driver for growth and are in a strategic position to trigger innovative spill-overs in other industrial sectors. Furthermore CCIs are a driving force for innovation and development of ICT in Europe. Cultural and creative industries in Europe provide more than 12 million full-time jobs, which amounts to 7.5 % of the EU'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.
Amendment 85 #
Proposal for a directive
Recital 37
Recital 37
(37) Over the last years, the functioning of the online content marketplace has gained in complexity. Online services providing access to copyright protected content uploaded by their users without the involvement of right holders have flourished and have become main sources of access to content online. This affects rightholders' possibilities to determine whether, and under which conditions, their work and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it. Despite the fact that more creative content is being consumed today than ever before, on services such as user-uploaded content platforms and content aggregation services, the creative sectors have not seen a comparable increase in revenues from this increase in consumption. One of the main reasons is being referred to as a transfer of value that has emerged due to the lack of clarity regarding the status of these online services under copyright and e-commerce law. An unfair market has been created, threatening the development of the Digital Single Market and its main players: the cultural and creative industries.
Amendment 86 #
Proposal for a directive
Recital 37
Recital 37
(37) Over the last years, the functioning of the online content marketplace has gained in complexity. Online services providing access to copyright protected content uploaded by their users without the involvement or agreement of right holders have flourished and have become main sources of access to content online. This affects rightholders' possibilities to determine whether, and under which conditions, their work and other subject- matter are used as well as their possibilities to get an appropriate remuneration for it. Information society service providers claim to be covered by the safe harbour exemption of Directive 2000/31/EC and either refuse to enter into licensing agreements or underpay creators, directly competing with fully licensed content providers for the same users and revenues. These services therefore conflict with the normal exploitation of copyright protected works and subject matter and drive down the overall value of creative content online.
Amendment 95 #
Proposal for a directive
Recital 38 – paragraph 1
Recital 38 – paragraph 1
Digital platforms are means of providing wider access to cultural and creative works and offer great opportunities for cultural and creative industries to develop new business models. Consideration is to be made of how this process can function with more legal certainty and respect for right holder. Transparency, a fair level playing field and protection of right holders within the copyright and intellectual property framework are necessary in order to ensure recognition of values and stimulation of innovation, creativity, investment and production of content. Where information society service providers store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities and performing an act of communication to the public, they are obliged to conclude licensing agreements with rightholders, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council34 . It is essential to clarify the limited liability provided by Article 14 of the E-Commerce Directive: Liability exemptions only apply to genuinely neutral and passive online providers, and not to services that play an active role in distributing, promoting and monetising content at the expense of creators. _________________ 34 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ L 178, 17.7.2000, p. 1–16).
Amendment 98 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Search engines embrace a wide variety of services whose aim is in principle to enable the public to access resources disseminated over the Internet. However, the nature of the acts performed by these entities varies greatly from service to service. While text search engines supply a clickable hypertext link whose basic aim is to lead users to the reference online service, most search engines specialising in images directly display the works referenced in the search results, autonomously in relation to the online service from which they are derived. As the images can then be consulted in their original format and in high quality, these search engines therefore in terms of their functionalities more closely resemble image banks. Exploitation of graphic, plastic or photographic works therefore requires authorisation by the rightholders under Articles 2 and 3 of Directive 2001/29/EC. In view of the very large number of images reproduced or communicated to the public by these search engines, it is desirable to leave it to the discretion of Member States to apply balanced solutions, with provision for equitable compensation.
Amendment 100 #
Proposal for a directive
Recital 38 – paragraph 1
Recital 38 – paragraph 1
Where information society service providers that store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities and performing an act of communication to the public and reproduction, they are obliged to conclude licensing agreements with rightholders,. Information society service providers that play an active role are not exempt unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council34 . _________________ 34 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ L 178, 17.7.2000, p. 1–16).
Amendment 100 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5 a) The Communication of the Commission Promoting a fair, efficient and competitive European copyright- based economy in the Digital Single Market (COM(2016)0592) underlines, in accordance with the impact assessment and the public consultation, that there is no evidence, as regard to cross-border issues or obstacle, that requires the Union to introduce a new "panorama exception". The European Parliament, in its Resolution of 9 July 2015 on the implementation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society followed this line and did not include this exception as requiring further EU harmonisation.
Amendment 101 #
Proposal for a directive
Recital 10
Recital 10
(10) This legal uncertainty should be addressed by providing for a mandatory exception to the right of reproduction and also to the right to prevent extraction from a database. The new exception should be without prejudice to the existing mandatory exception on temporary acts of reproduction laid down in Article 5(1) of Directive 2001/29, which should continue to apply to text and data mining techniques which do not involve the making of copies going beyond the scope of that exception. Research organisations should also benefit from the exception when they engage into public-private partnershipsonly apply to the text and data mining process pursued for non-commercial purpose. Right holders should keep the capacity to develop licences and to receive payment.
Amendment 101 #
Proposal for a directive
Recital 5 b (new)
Recital 5 b (new)
(5b) The right of communication to the public and the right of making available to the public defined in Article 3 of the Directive, which implements the principles and rules laid down in Article 8 of the WIPO Copyright Treaty, to which the Union is a party, play a vital role in the information society. Union law should guarantee its effect and effectiveness in order to afford a high level of protection to rightholders.
Amendment 104 #
Proposal for a directive
Article 13 – title
Article 13 – title
Use of protected content by information society service providers storing and giving access to large amounts of works andor other subject-matter uploaded by their users
Amendment 106 #
Proposal for a directive
Recital 38 – paragraph 2
Recital 38 – paragraph 2
In respect of Article 14, it is necessary to verify whether the service provider plays an active role, including by optimising the presentation of the uploaded works or subject-matter or promoting them, irrespective of the nature of the means used therefore. An information society service provider shall be obliged to acquire licenses for copyright protected content regardless of whether they have editorial responsibility for that content. The licenses acquired by information society service providers from rightsholders should be deemed to cover all user generated content by their users, including users that are acting for non- commercial purposes. This will provide legal certainty for individual users of such services whilst clarifying the liability of platforms.
Amendment 108 #
Proposal for a directive
Recital 11
Recital 11
(11) Research organisations across the Union encompass a wide variety of entities the primary goal of which is to conduct scientific research or to do so together with the provision of educational services. Due to the diversity of such entities, it is important to have a common understanding of the beneficiaries of the exception. Despite different legal forms and structures, research organisations across Member States generally have in common that they act either on a not for profitn-commercial basis or in the context of a public-interest mission recognised by the State. Such a public-interest mission may, for example, be reflected through public funding or through provisions in national laws or public contracts. Research organisations that carry out text and data mining for a commercial purpose, shall not be considered research organisation for the purpose of this Directive. At the same time, organisations upon which commercial undertakings have a decisivesignificant 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. Research organisations that carry out text and data mining as part of public-private partnership should benefit from the exception provided that they act on a non-profit, non-commercial purpose. Therefore, content used by research organisations that carry out text and data mining for commercial purposes as part of a public-private partnership should be lawfully acquired by their commercial partner.
Amendment 108 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Information society service providers that store and provide to the public access to large amounts ofprotected works or other subject-matter uploaded by their users shall, in cooperation conclude fair and balanced agreements with all rightholders governing such content at the request of those rightholders, unless they are eligible for the liability exemption provided for in article 14 of Directive 200/31/EC. Under the terms of the agreements with rightholders, these service providers shall take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject- matter or to prev. These agreements should cover the liability of users of information society providers’ services whent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with se users are not acting professionally for acts falling under Articles 2 and 3 of Directive 2001/29/EC that they perform. Information society service providers shall take measures to prevent protected works or other subject-matter identified by rightholders in cooperation with the service providers from being made available by their services, where those providers: (a) play an active part but are not required to conclude a licensing agreement by the holders of rights to works or other service providers.ubject-matter stored by them and to which they provide public access; or (ii) are eligible for the liability exemption provided for in Article 14 of Directive 2000/31/EC, but store and provide to the public access to a large number of protected works or other subject-matter, Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter. Rightholders shall provide information society service providers with all relevant and necessary details to ensure the functioning of measures taken by the service providers pursuant to this Article.
Amendment 113 #
Proposal for a directive
Recital 38 – paragraph 3
Recital 38 – paragraph 3
In order to ensure the functioning of any licensing agreement, information society service providers storing and providing access to the public to largesignificant 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.
Amendment 116 #
Proposal for a directive
Recital 10
Recital 10
(10) This legal uncertainty should be addressed by providing for a mandatory exception to the right of reproduction and also to the right to prevent extraction from a database. The new exception should be without prejudice to the existing mandatory exception on temporary acts of reproduction laid down in Article 5(1) of Directive 2001/29, which should continue to apply to text and data mining techniques which do not involve the making of copies going beyond the scope of that exception. Research organisations should also benefit from the exception when they engage into public-private partnershipIn order to preserve the capacity of rightholders to develop licences on the market and to receive payment, the exception should apply only to text and data mining conducted for non- commercial purposes.
Amendment 117 #
Proposal for a directive
Recital 13
Recital 13
(13) There is no need toConsidering the harm caused to rightholders, Member states shall provide them for compensation for rightholders as regards uses under the text and data mining exception introduced by this Directive given that in view of the nature and scope of the exception the harm should be minimal.
Amendment 118 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13 a) The process of text and data mining includes a substantial download of protected works and other subject matter. Therefore the storage and copy of content shall be strictly limited to what is necessary to verify results. Any copies stored shall be deleted after a reasonable period of time, in order to avoid other uses not covered by the exception.
Amendment 121 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1. Any complaint filed under such mechanisms shall be processed by the relevant rightholder within a reasonable period of time. The rightholder shall give evidence for the rights being upheld.
Amendment 122 #
Proposal for a directive
Recital 40
Recital 40
(40) Certain rightholders such as authors and performers need information to assess the economic value of their rights which are harmonised under Union law. This is especially the case where such rightholders grant a licence or a transfer of rights in return for remuneration. As authors and performers tend to bare in a weaker contractual position when they grant licences or transfer their rights, they need information to assess the continued economic value of their rights, compared to the remuneration received for their licence or transfer, but they often face a lack of transparency. Therefore, the sharing of adequate information by their contractual counterparts orand subsequent transferees or licenses, as well as their successors in title is important for the transparency and balance in the system that governs the remuneration of authors and performers. The reporting and transparency obligation should follow the work across all forms of exploitation and across borders.
Amendment 124 #
Proposal for a directive
Recital 41
Recital 41
(41) When implementing transparency obligations, the specificities of different content sectors and of the rights of the authors and performers in each sector should be considered. Member States should consult all relevant stakeholders as that should help determine sector-specific requirements, standard reporting statements and procedures. Collective bargaining should be considered as an option to reach an agreement between the relevant stakeholders regarding transparency. To enable the adaptation of current reporting practices to the transparency obligations, a transitional period should be provided for. The transparency obligations do not need to apply to agreements concluded with collective management organisations as those are already subject to transparency obligations under Directive 2014/26/EU. Directive 2014/26/EU, on the condition that Member States have transposed Directive 2014/26/EU and taken all necessary measures to ensure that the management of all collective management organisations is carried out in an effective and equitable manner. Member States should also ensure that collective management organisations act in the best interest of the rightsholders, ensuring the accurate and regular distribution of payment and production of an annual public transparency report, in compliance with Directive 2014/26/EU.
Amendment 128 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
3. Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments. In cooperation with the Member States, the Commission shall encourage the exchange of best practices across the Union regarding the results of any cooperation established in implementation of paragraph 1.
Amendment 131 #
Proposal for a directive
Recital 16
Recital 16
(16) The exception or limitation should cover digital uses of works and other subject-matter such as the use of parts or extracts of works to support, enrich or complement the teaching, including the related learning activities. The use of the works or other subject-matter or extracts under the exception or limitation should be only in the context of teaching and learning activities carried out under the responsibility of educational establishments, including during examinations, and be limited to what is necessary for the purpose of such activities. Thus, for example, the exception should be limited to the use of short extracts for written works, except in the case of plays and poems. The exception or limitation should cover both uses through digital means in the classroom and online uses through the educational establishment's secure electronic network, the access to which should be protected, notably by authentication procedures. The exception or limitation should be understood as covering the specific accessibility needs of persons with a disability in the context of illustration for teaching.
Amendment 136 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13 a Licensing agreements for information society service providers that store and/or provide access to the public to significant amounts of copyright protected works or other subjet-matter uploaded by their users 1. Information society service providers that store and/or provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities and performing an act of communication to the public and of reproduction, shall conclude licensing agreements with rightholders, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC. 2. Service providers that play an active role, including by optimising the presentation of uploaded works or subject-matter or promoting them, are not eligible for the safe harbour liability exemption. 3. Licences acquired by information society service providers shall cover all the acts of their individual users, which are not for direct or indirect economic or commercial advantage.
Amendment 139 #
Proposal for a directive
Article 13 b (new)
Article 13 b (new)
Article 13 b Inalienable right to fair remuneration for authors and performers 1. Member States shall ensure that when authors and performers transfer or assign their right of making the works available to the public, they retain the right to obtain fair remuneration derived from the exploitation of their work. 2. The right of an author or performer to obtain fair remuneration for the making available of his work cannot be waived. 3. The administration of this right to fair remuneration for the making available of an author's or performer's work shall be entrusted to their collective management organisations, unless other collective agreements, including voluntary collective management agreements, guarantee such remuneration to authors and performers for their right of making works available. 4. Collective management organisations shall collect the fair remuneration from information society services making works available to the public.
Amendment 140 #
Proposal for a directive
Recital 17
Recital 17
(17) Different arrangements, based on the implementation of the exception provided for in Directive 2001/29/EC or on licensing agreements covering further uses, are in place in a number of Member States in order to facilitate educational uses of works and other subject-matter. Such arrangements have usually been developed taking account of the needs of educational establishments and different levels of education. Whereas it is essential to harmonise the scope of the new mandatory exception or limitation in relation to digital uses and cross-border teaching activities, the modalities of implementation may differ from a Member State to another, to the extent they do not hamper the effective application of the exception or limitation or cross-border uses. This should allow Member States to build on the existing arrangements concluded at national level. In particular, Member States could decide to subject the application of the exception or limitation, fully or partially, to the availability of adequate licences, covering at least the same uses as those allowed under the exception. This mechanism wshould, for example, allow giving precedence to licences for however not apply to materials which are primarily intended for the educational market, for which it should be possible to arrange licences. In order to avoid that such mechanism results in legal uncertainty or administrative burden for educational establishments, Member States adopting this approach should take concrete measures to ensure that licensing schemes allowing digital uses of works or other subject-matter for the purpose of illustration for teaching are easily available and that educational establishments are aware of the existence of such licensing schemes.
Amendment 140 #
Proposal for a directive
Recital 10
Recital 10
(10) This legal uncertainty should be addressed by providing for a mandatory exception to the right of reproduction and also to the right to prevent extraction from a database. The new exception should be without prejudice to the existing mandatory exception on temporary acts of reproduction laid down in Article 5(1) of Directive 2001/29, which should continue to apply to text and data mining techniques which do not involve the making of copies going beyond the scope of that exception. Research organisations should also benefit from the exception when they engage into public-private partnershipsonly apply to the text and data mining process pursued for non-commercial purpose. Rightholders should still be entitled to develop licences and to receive payment.
Amendment 151 #
Proposal for a directive
Recital 16
Recital 16
(16) The exception or limitation should cover digital uses of works and other subject-matter such as the use of parts or extracts of works to support, enrich or complement the teaching, including the related learning activities. The use of the works or other subject-matter or extracts under the exception or limitation should be only in the context of teaching and learning activities carried out under the responsibility of educational establishments, including during examinations, and be limited to what is necessary for the purpose of such activities. Thus, for example, the exception should be limited to the use of brief extracts for intellectual works, except in the case of plays and poems. The exception or limitation should cover both uses through digital means in the classroom and online uses through the educational establishment's secure electronic network, the access to which should be protected, notably by authentication procedures. The exception or limitation should be understood as covering the specific accessibility needs of persons with a disability in the context of illustration for teaching.
Amendment 152 #
Proposal for a directive
Article 3 – paragraph 4 – point 1 (new)
Article 3 – paragraph 4 – point 1 (new)
(1) Legal redress should be available for those under excessive circumstances referenced under Paragraph 3.
Amendment 153 #
Proposal for a directive
Recital 11
Recital 11
(11) Research organisations across the Union encompass a wide variety of entities the primary goal of which is to conduct scientific research or to do so together with the provision of educational services. Due to the diversity of such entities, it is important to have a common understanding of the beneficiaries of the exception. Despite different legal forms and structures, research organisations across Member States generally have in common that they act either on a not for profitn-commercial basis or in the context of a public-interest mission recognised by the State. Such a public-interest mission may, for example, be reflected through public funding or through provisions in national laws or public contracts. Research organisations that carry out text and data mining for a commercial purpose, should not be considered research organisation for the purpose of this Directive. At the same time, organisations upon which commercial undertakings have a decisivesignificant 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. Research organisations that carry out text and data mining as part of public-private partnership should benefit from the exception provided that they act on a non-profit, non-commercial purpose. Therefore, content used by research organisations that carry out text and data mining for commercial purposes as part of a public-private partnership should be lawfully acquired by their commercial partner.
Amendment 159 #
Proposal for a directive
Recital 23
Recital 23
(23) Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of mechanism allowing for licences for out-of-commerce works to extend to the rights of rightholders that are not represented by the collective management organisation,This directive is without prejudice to specific solutions developed by Member States in order to deal with the issues raised by mass digitisation, such as systems for out-of-commerce works. Such solutions take into account the specific characteristic of the various types of work or other subject-matter and of the various users; they are devised on the basis of consensus between the stakeholders. This approach has already been adopted in the Memorandum of Understanding on Key Principles on the Digitisation and Making Available of Out-of-Commerce Works, signed on 20 September2011 by representatives of European libraries, authors, publishers and collective management organisations under the aegis of the Commission. This directive is without prejudice to that Memorandum of Understanding, which calls on Member States and the Commission to ensure that voluntary agreements concluded between users, rightholders and collective management organisations to authorise the use of out-of-commerce works on the basis of the principles contained in the Memorandum have the benefit of legal certainty in the national and cross-border context. Member States should have a certain margin of discretion to choose the specific type of arrangement in accordance to their legal traditions, practices or circumstances. Such mechanisms can include extended collective licensing and presumptions of representation.
Amendment 163 #
Proposal for a directive
Recital 17
Recital 17
(17) Different arrangements, based on the implementation of the exception provided for in Directive 2001/29/EC or on licensing agreements covering further uses, are in place in a number of Member States in order to facilitate educational uses of works and other subject-matter. Such arrangements have usually been developed taking account of the needs of educational establishments and different levels of education. Whereas it is essential to harmonise the scope of the new mandatory exception or limitation in relation to digital uses and cross-border teaching activities, the modalities of implementation may differ from a Member State to another, to the extent they do not hamper the effective application of the exception or limitation or cross-border uses. This should allow Member States to build on the existing arrangements concluded at national level. In particular, Member States could decide to subject the application of the exception or limitation, fully or partially, to the availability of adequate licences, covering at least the same uses as those allowed under the exception. This mechanism wshould, for example, allow giving precedence to licences for not, on the other hand, apply to materials which are primarily intended for the educational market, for which it should be possible to arrange licences. In order to avoid that such mechanism results in legal uncertainty or administrative burden for educational establishments, Member States adopting this approach should take concrete measures to ensure that licensing schemes allowing digital uses of works or other subject-matter for the purpose of illustration for teaching are easily available and that educational establishments are aware of the existence of such licensing schemes.
Amendment 168 #
Proposal for a directive
Recital 13
Recital 13
(13) There is no need to provide for compensation for rightholders as regards uses under the text and data mining exception introduced by this Directive given that in view of the nature and scope of the exception the harm should be minimalConsidering the harm caused to rightholders, Member states should provide them with compensation as regards uses under the text and data mining exception introduced by this Directive.
Amendment 170 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13 a) The process of text and data mining includes a substantial download of protected works and other subject matter. Therefore the storage and copy of content should be strictly limited to what is necessary to verify results. Any copies stored should be deleted after a reasonable period of time, in order to avoid other uses not covered by the exception.
Amendment 172 #
Proposal for a directive
Article 4 – paragraph 2 – subparagraph 2
Article 4 – paragraph 2 – subparagraph 2
Member States availing themselves of the provision of the first subparagraph shall take the necessary measures to ensure appropriate availability and visibility of the licences, through an easily accessible database, authorising the acts described in paragraph 1 for educational establishments.
Amendment 174 #
Proposal for a directive
Recital 31
Recital 31
(31) A free and pluralist press is essential to ensure quality journalism and citizens' access to information. It provides a fundamental contribution to public debate and the proper functioning of a democratic society. In the transition from print to digital, publishers of press publications have invested heavily in digitalizing their content and yet are facing problems in licensing the online use of their publications and recouping their investments. Digital platforms such as new aggregators and search engines have developed their activities based on the investment by press publishers in the creation of content without contributing to its development. This poses a severe threat to the employment and fair remuneration of journalists and the future of media pluralism. In the absence of recognition of publishers of press publications as rightholders, licensing and enforcement in the digital environment is often complex and inefficient.
Amendment 179 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Member States may provide for fair compensation for theany undue financial harm incurred by the rightholders due to the use of their works or other subject- matter pursuant to paragraph 1.
Amendment 186 #
Proposal for a directive
Article 7 – paragraph 2 – subparagraph 2
Article 7 – paragraph 2 – subparagraph 2
Member States shall, in consultation with rightholders, collective management organisations and cultural heritage institutions, ensure that the requirements used to determine whether works and other subject-matter can be licensed in accordance with paragraph 1 do not extend beyond what is necessary and reasonable and do not preclude the possibility to determine the out-of-commerce status of a collection as a whole, when it is reasonable to presume that all works or other subject- matter in the collection are out of commerce. In the event that a collective management organisation does not exist or adequately represent the rights of rightsholders, Member States should provide exceptions for cultural heritage institutions, research organisations and educational establishments, both formal and non-formal, to distribute, communicate to the public or make available out-of-commerce-works for non- commercial purposes. Member States should ensure appropriate remuneration for any unreasonable prejudice to the legitimate interests of the rightsholders and ensure that all rightsholders may at any time object to the use of their works.
Amendment 187 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
Member States shall ensure a regular dialogue between representative users' and rightholders' organisations, and any other relevant stakeholder organisations, to, on a sector-specific basis, foster the relevance and usability of the licensing mechanisms referred to in Article 7(1), including resolving issues where cultural heritage institutions activities in line with Article 7 and Article 8 are not being reasonably enabled, and ensure the effectiveness of the safeguards for rightholders referred to in this Chapter, notably as regards publicity measures, and, where applicable, assist in the establishment of the requirements referred to in the second subparagraph of Article 7(2).
Amendment 194 #
Proposal for a directive
Recital 16
Recital 16
(16) The exception or limitation should cover digital uses of works and other subject-matter such as the use of parts or extracts of works to support, enrich or complement the teaching, including the related learning activities, but excluding musical scores. The use of the works or other subject-matter or extracts under the exception or limitation should be only in the context of teaching and learning activities carried out under the responsibility of educational establishments, including during examinations, and be limited to what is necessary for the purpose of such activities. Thus, for example, the exception should be limited to the use of short extracts for written works, except in the case of plays and poems. The exception or limitation should cover both uses through digital means in the classroom and online uses through the educational establishment's secure electronic network, the access to which should be protected, notably by authentication procedures. The exception or limitation should be understood as covering the specific accessibility needs of persons with a disability in the context of illustration for teaching.
Amendment 196 #
Proposal for a directive
Recital 23
Recital 23
(23) Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of mechanism allowing for licences for out-of-commerce works to extend to the rights of rightholders that are not represented by the collective management organisation,This directive is without prejudice to specific solutions developed by Member States in order to deal with the issues raised by mass digitisation, such as systems for out-of-commerce works. Such solutions take into account the specific characteristic of the various types of work or other subject-matter and of the various users; they are devised on the basis of consensus between the stakeholders. This approach has already been adopted in the Memorandum of Understanding on Key Principles on the Digitisation and Making Available of Out-of-Commerce Works, signed on 20 September2011 by representatives of European libraries, authors, publishers and collective management organisations under the aegis of the Commission. This directive is without prejudice to that Memorandum of Understanding, which calls on Member States and the Commission to ensure that voluntary agreements concluded between users, rightholders and collective management organisations to authorise the use of out-of-commerce works on the basis of the principles contained in the Memorandum have the benefit of legal certainty in the national and cross-border context. Member States should have a certain margin of discretion to choose the specific type of arrangement in accordance to their legal traditions, practices or circumstances. Such mechanisms can include extended collective licensing and presumptions of representation.
Amendment 201 #
Proposal for a directive
Article 11 – paragraph 4 a (new)
Article 11 – paragraph 4 a (new)
4 a. Member States should ensure that a fair share of the revenue derived from the uses of the press publishers rights is attributed to journalists.
Amendment 201 #
Proposal for a directive
Recital 34
Recital 34
(34) The rights granted to the publishers of press publications under this Directive should have the same scope as the rights of reproduction and making available to the public provided for in Directive 2001/29/EC, insofar as digital uses are concerned. Theyand as the rental and lending right and the distribution right provided for in Directive 2006/115/EC. As there is no part of a press publication that does not have an economic value, also the use of short extracts of automatically generated content by news aggregators or search engines may constitute a reproduction and making available as interferes with the publisher's investment in the content. The rights should also be subject to the same provisions on exceptions and limitations as those applicable to the rights provided for in Directive 2001/29/EC including the exception on quotation for purposes such as criticism or review laid down in Article 5(3)(d) of that Directive.
Amendment 205 #
Proposal for a directive
Recital 17
Recital 17
(17) Different arrangements, based on the implementation of the exception provided for in Directive 2001/29/EC or on licensing agreements covering further uses, are in place in a number of Member States in order to facilitate educational uses of works and other subject-matter. Such arrangements have usually been developed taking account of the needs of educational establishments and different levels of education. Whereas it is essential to harmonise the scope of the new mandatory exception or limitation in relation to digital uses and cross-border teaching activities, the modalities of implementation may differ from a Member State to another, to the extent they do not hamper the effective application of the exception or limitation or cross-border uses. This should allow Member States to build on the existing arrangements concluded at national level. In particular, Member States could decide to subject the application of the exception or limitation, fully or partially, to the availability of adequate licences, covering at least the same uses as those allowed under the exception. This mechanism wshould, for example, allow giving precedence to licences for not apply to materials which are primarily intended for the educational market, for which it should be possible to arrange licences. In order to avoid that such mechanism results in legal uncertainty or administrative burden for educational establishments, Member States adopting this approach should take concrete measures to ensure that licensing schemes allowing digital uses of works or other subject-matter for the purpose of illustration for teaching are easily available and that educational establishments are aware of the existence of such licensing schemes.
Amendment 207 #
Proposal for a directive
Article 13 – title
Article 13 – title
Use of protected content by information society service providers storing and giving access to largesignificant amounts of works and other subject-matter uploaded by their users
Amendment 209 #
Proposal for a directive
Recital 35
Recital 35
(35) The protection granted to publishers of press publications under this Directive should not affect the rights of the authors and other rightholders in the works and other subject-matter incorporated therein, including as regards the extent to which authors and other rightholders can exploit their works or other subject-matter independently from the press publication in which they are incorporated. Therefore, publishers of press publications should not be able to invoke the protection granted to them against authors and other rightholders. This is without prejudice to contractual arrangements concluded between the publishers of press publications, on the one side, and authors and other rightholders, on the other side. Member States should ensure that a fair share of remuneration derived from uses of the press publishers' rights is attributed to journalists.
Amendment 214 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Information society service providers that store and provide to the public access to largesignificant amounts of works or other subject-matter uploaded by their users shall, conclude licensing agreements with rightholders. These services shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.
Amendment 221 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37 a) User uploaded content services attract users and derive economic value from providing access to protected works and other subject matter, often including its optimization of presentation, organisation and promotion. In doing so, they directly compete with licensed content providers for the same users and revenues. However, unlike licensed services, such user uploaded content services either do not pay or underpay the creators for the works on which they rely by wrongfully claiming safe harbour provisions of the Directive 2000/31/EC.
Amendment 225 #
Proposal for a directive
Recital 37 b (new)
Recital 37 b (new)
(37 b) This transfer of value undermines the efficiency of the online market, distorts competition and drives down the overall value of cultural content online. It also limits consumer choice for new and innovative legitimate services in the European Digital Single Market and risks cultural and creative industries that create significant jobs and growth for EU economy as underlined by the European Parliament resolution of 13 December 2016 on a coherent EU policy for cultural and creative industries (2016/2072(INI)).
Amendment 231 #
Proposal for a directive
Article 13 – paragraph 3 a (new)
Article 13 – paragraph 3 a (new)
3 a. Information society service providers that take measures referred to in paragraph 1, shall ensure that such measures are in full compliance with Directive 95/46/EC and Directive 2002/58/EC, and the General Data Protection Regulation 2016/679.
Amendment 232 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13 a Licensing agreements for information society service providers that store and provide access to the public to significant amounts of copyright protected works or other subject-matter uploaded by their users 1. Information society service providers that store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities and performing an act of communication to the public and of reproduction, shall conclude licensing agreements with rightholders, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council. 2. Service providers that play an active role, including by optimising the presentation of the uploaded works or subject-matter or promoting them, are not eligible for the safe harbour liability exemption. 3. Licenses acquired by information society service providers shall cover all the acts of their individual users, which are not for direct or indirect economic or commercial advantage.
Amendment 234 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13 a Protection of audiovisual authors for the making available of their works 1. Member States shall ensure that when an audiovisual author has transferred or assigned his making available right to a producer, that author shall retain the right to obtain an equitable and proportionate remuneration. 2. This right to obtain an equitable and proportionate remuneration for the making available of the author's work is inalienable and cannot be waived. 3. The administration of this right to obtain an equitable and proportionate remuneration for the making available of the author's work shall be entrusted to collective management organisations representing audiovisual authors, unless other collective agreements, including voluntary collective management agreements, guarantee such remuneration to audiovisual authors for their making available right. 4. Authors' collective management organisations shall collect the equitable and proportionate remuneration from audiovisual media services making audiovisual works available to the public.
Amendment 236 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Member States shall ensure that authors and performers receive on a regular basisat least once a year and taking into account the specificities of each sector, accurate, timely, adequate and sufficient information on the exploitation and promotion of their works and performances from those to whom they have licensed or transferred their rights, including subsequent transferees or licensees, notably as regards modes of promotion, exploitation, revenues generated and remuneration due.
Amendment 240 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. The obligation in paragraph 1 shall be proportionate and effective and shall ensure an appropriate high level of transparency in every sector. However, in those cases where the administrative burden resulting from the obligation would be disproportionate in view of the revenues generated by the exploitation of the work or performance, Member States may adjust the obligation in paragraph 1, provided that the obligation remains effective and ensures an appropriate level of transparency.
Amendment 244 #
Proposal for a directive
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
2 a. Member States shall ensure that sector-specific standard reporting statements and procedures are developed through stakeholder dialogues.
Amendment 252 #
Proposal for a directive
Recital 23
Recital 23
(23) Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of mechanism allowing for licences for out-of-commerce works to extend to the rights of rightholders that are not represented by the collective management organisation,This directive is without prejudice to specific solutions developed by Member States in order to deal with the issues raised by mass digitisation, such as systems for out-of-commerce works. Such solutions take into account the specific characteristic of the various types of work or other subject-matter and of the various users; they are devised on the basis of consensus between the stakeholders. This approach has already been adopted in the Memorandum of Understanding on Key Principles on the Digitisation and Making Available of Out-of-Commerce Works, signed on 20 September2011 by representatives of European libraries, authors, publishers and collective management organisations under the aegis of the Commission. This directive should be without prejudice to that Memorandum of Understanding, which calls on Member States and the Commission to ensure that voluntary agreements concluded between users, rightholders and collective management organisations to authorise the use of out- of-commerce works on the basis of the principles contained in the Memorandum have the benefit of legal certainty in the national and cross-border context. Member States should have a certain margin of discretion to choose the specific type of arrangement in accordance to their legal traditions, practices or circumstances. Such mechanisms can include extended collective licensing and presumptions of representation.
Amendment 262 #
Where information society service providers store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities andinstallations and thus performing an act of communication to the public and/or making available to the public, as well as an act of reproduction, they are obliged to conclude licensing agreements with rightholders who so request, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council34 . In the interests of ensuring legal certainty for users of services, these agreements should cover the liability of the latter when they are not acting professionally for acts falling under Articles 2 and 3 of Directive 2001/29/EC that they perform. _________________ 34 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ L 178, 17.7.2000, p. 1–16).
Amendment 275 #
Proposal for a directive
Recital 38 – paragraph 2
Recital 38 – paragraph 2
In respect of this Article 14, it is necessary to verify whether the service provider plays an active role, including by optimising the presentation of the uploaded works or subject-mattercontent provided by the service or promoting themat content, irrespective of the nature of the means used therefor.
Amendment 279 #
In order to ensure the functioning of any licensing agreement, information society service providers storing and providing access to the public to large amounts of copyright protected works or other subject- matter uploaded by their users should take appropriate and proportionate measures to ensure protection of works or other subject-matter, such as implementing effective technologies. This obligation should also apply when the information society service providers are eligible for the liability exemption provided in Article 14 of Directive 2000/31/ECno request for a licensing agreement is addressed to the information society service providers who play an active role or when the information society service providers which are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC store and offer to the public a significant quantity of works or other subject-matter uploaded by their users.
Amendment 284 #
Proposal for a directive
Recital 40
Recital 40
(40) Certain rightholders such as authors and performers need information to assess the economic value of their rights which are harmonised under Union law. This is especially the case where such rightholders grant a licence or a transfer of rights in return for remuneration. As authors and performers tend to bare in a weaker contractual position when they grant licences or transfer their rights, they need accurate information to assess the continued economic value of their rights, compared to the remuneration received for their licence or transfer, but they often face a lack of transparency. Therefore, the sharing of adequate information by their contractual counterparts orand subsequent transferees or licences, as well as their successors in title is important for the transparency and balance in the system that governs the remuneration of authors and performers. The reporting and transparency obligation should follow the work across all form of exploitation and across borders.
Amendment 290 #
Proposal for a directive
Recital 41
Recital 41
(41) When implementing transparency obligations, the specificities of different content sectors and of the rights of the authors and performers in each sector should be considered. Member States should consult all relevant stakeholders as that should help determine sector-specific requirements and standard reporting statements and procedures. Collective bargaining should be considered as an option to reach an agreement between the relevant stakeholders regarding transparency. To enable the adaptation of current reporting practices to the transparency obligations, a transitional period should be provided for. The transparency obligations do not need to apply to agreements concluded with collective management organisations as those are already subject to transparency obligations under Directive 2014/26/EU, on the condition that Member States have transposed Directive 2014/26/EU and taken all necessary measures to ensure that the management of all collective management organisations is carried out in a sound, prudent and appropriate manner. Member States should also ensure that collective management organisations act in the best interest of the right holders whose rights they represent and regularly, diligently and accurately distribute and pay amounts due to rightholders and make public an annual transparency report, in full compliance with Directive 2014/26/EU.
Amendment 294 #
Proposal for a directive
Recital 41 a (new)
Recital 41 a (new)
(41 a) Authors and performers should be able to enterinto fair and balanced remuneration contracts, regardless of their sector.
Amendment 296 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
(39a) In view of the requirements imposed by this directive regarding agreements and cooperation between information society service providers and rightholders, it is necessary to provide for an intermediate procedure which will permit the parties to seek an amicable solution to any dispute concerning the relevant provisions of this directive. Member States must support such a mechanism by designating an impartial body with relevant experience and competence to assist the parties in the resolution of their dispute.
Amendment 299 #
Proposal for a directive
Recital 42
Recital 42
(42) Certain contracts for the exploitation of rights harmonised at Union level are of long duration, offering few possibilities for authors and performers to renegotiate them with their contractual counterparts or their successors in title. Therefore, without prejudice to the law applicable to contracts in Member States, there should be a remuneration adjustment mechanism for cases where the remuneration originally agreed under a licence or a transfer of rights is disproportionately low compared to the relevant revenues and the benefitdirect and indirect revenues derived from the exploitation of the work or the fixation of the performance, including in light of the transparency ensured by this Directive. The assessment of the situation should take account of the specific circumstances of each case as well as of the specificities and practices of the different content sectors. Where the parties do not agree on the adjustment of the remuneration, the author or performer should be entitled to bring a claim before a court or other competent authority.
Amendment 300 #
Proposal for a directive
Recital 39 b (new)
Recital 39 b (new)
(39b) It should be recalled that, both in general and in the light of the references to Article 3 of Directive 2001/29/EC made in this directive, a work and/or other subject-matter is communicated to the public and/or made available to the public when a natural or legal person affords access to it to persons outside their normal family circle or most immediate associates. For this purpose it makes no difference that the latter can gain access to the works and/or other subject-matter at the same place or in different places and at the same time or at different times.
Amendment 306 #
Proposal for a directive
Article 2 – paragraph 1 – subparagraph 2
Article 2 – paragraph 1 – subparagraph 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 decisivesignificant influence upon such organisation;
Amendment 313 #
Proposal for a directive
Recital 41 a (new)
Recital 41 a (new)
(41a) Authors and performers are not in a position to negotiate on equal terms with their contractual counterparts or their successors in title. This situation is particularly evident in the audiovisual sector and the bargaining power of the authors and performers of audiovisual works is significantly weakened as a result. Therefore, without prejudice to the law applicable to contracts in Member States, a principle of fair remuneration specific to each mode of exploitation should be established and should apply, in particular, in cases where the remuneration originally agreed under a licence or a transfer of rights is neither fair nor specific to each mode of exploitation. Remuneration should be fair and effective and should take account of the specific circumstances of each instance of exploitation as well as of the specificities and practices of the different content sectors. Where a licensing agreement does not include fair remuneration specific to modes of exploitation, the author or performer should be entitled to bring a claim before a court or other competent authority.
Amendment 321 #
Proposal for a directive
Recital 42
Recital 42
(42) Certain contracts for the exploitation of rights harmonised at Union level are of long duration, offering few possibilities for authors and performers to renegotiate them with their contractual counterparts or their successors in title. Therefore, without prejudice to the law applicable to contracts in Member States, there should be a remuneration adjustment mechanism for cases where the remuneration originally agreed under a licence or a transfer of rights is disproportionately low compared to the relevant revenues and the benefits derived from the exploitation of the work or the fixation of the performance, including in light of the transparency ensured by this Directive. The assessment of the situation should take account of the specific circumstances of each case as well as of the specificities and practices of the different content sectors. Where the parties do not agree on the adjustment of the remuneration, the author or performer should be entitled to bring a claim before a court or other competent authority.
Amendment 323 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC and Article 11(1) of this Directive for reproductions and extractions made by research organisations in order to carry out text and data mining of works or other subject-matter to which they have lawfulacquired lawful licence based access for the purposes of non-commercial scientific research.
Amendment 336 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3a. Copies of content obtained for mining text and data shall be stored or preserved in a controlled and protected way, for a reasonable period of time, in the sole purpose of verification of results. Any copies of content obtained for mining text and data which are stored or preserved for longer than what is reasonable, shall constitute infringing copies.
Amendment 347 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. Member States shall provide for an exception or limitation to the rights provided for in Articles 2 and 3 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1) of Directive 2009/24/EC and Article 11(1) of this Directive in order to allow for the digital use of works and other subject- matter or extract thereof, except contents that are primarily intended to the educational and musical scores markets for the sole purpose of illustration for teaching, to the extent justified by the non- commercial purpose to be achieved, provided that the use:
Amendment 353 #
Proposal for a directive
Recital 36
Recital 36
(36) Publishers, including those of press publications, books, music or scientific publications, often operate on the basis of the transfer of authors' rights by means of contractual agreements or statutory provisions. In other cases, they operate based on agreements where authors grant a right to claim a share of the income. In this context, publishers make an investment with a view to the exploitation of the works contained in their publications and may in some instances be deprived of revenues where such works are used under exceptions or limitations such as the ones for private copying and reprography. In a number of Member States compensation for uses under those exceptions is shared between authors and publishers. In order to take account of this situation and improve legal certainty for all concerned parties, Member States should be allowed to determine that, when an author has transferred, assigned or licensed his rights, including the right to claim a share of income, to a publisher or otherwise contributes with his works to a publication and there are systems in place to compensate for the harm caused by an exception or limitation, publishers are entitled to claim a share of such compensation, whereas the burden on the publisher to substantiate his claim should not exceed what is required under the system in place.
Amendment 360 #
Proposal for a directive
Article 4 – paragraph 2 – subparagraph 1
Article 4 – paragraph 2 – subparagraph 1
Member States may provide that the exception adopted pursuant to paragraph 1 does not apply generally or as regards specific types of works or other subject- matter, to the extent that adequate licences authorising the acts described in paragraph 1 are easily available in the market.
Amendment 370 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Member States mayshall provide for fair compensation for the harm incurred by the rightholders due to the use of their works or other subject-matter pursuant to paragraph 1.
Amendment 370 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37 a) Despite the fact that more creative content is being consumed today than ever before, on services such as user- uploaded content platforms and content aggregation services, yielding significant profits, the creative sectors have not seen a comparable increase in revenues from this increase in consumption. The value of cultural and creative works has been diverted away from the authors, artists, producers and others rights holders, generating an unsustainable "value gap". This transfer of value, due to the lack of clarity regarding the status of these online services under copyright and e-commerce law, undermines the efficiency of the online market, distorts competition and drives down the overall value of cultural content online. It also limits consumer choice for new and innovative legitimate services in the European Digital Single Market and puts at risk cultural and creative industries that create significant jobs and growth for EU economy, as underlined by the European Parliament resolution of 13 December 2016 on a "coherent EU policy for cultural and creative industries (2016/2072(INI))"
Amendment 374 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. Member States shall provide for an exception or limitation to the rights provided for in Articles 2 and 3 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1) of Directive 2009/24/EC and Article 11(1) of this Directive in order to allow for the digital use of works and other subject- matter, or of extracts thereof, with the exception of content intended chiefly for the educational market and the market in musical scores, for the sole purpose of illustration for teaching, to the extent justified by the non-commercial purpose to be achieved, provided that the use:
Amendment 375 #
Proposal for a directive
Recital 37 a (new)
Recital 37 a (new)
(37 a) It should be clearly noted that the mechanism providing exemption from liability does not apply to services that play an active role in uploading copyrighted works or subject-matter. Accordingly, UUC services undertaking acts of communication to the public through their essential intervention in the act of communication to the public initiated by uploaders are not covered by Directive 2000/31/EC where copyright is concerned, and are therefore subject to the provisions of Directive 2001/29/EC in the same way as providers of online content services.
Amendment 376 #
Proposal for a directive
Recital 37 b (new)
Recital 37 b (new)
(37 b) Digital platforms are means of providing wider access to cultural and creative works and offer great opportunities for cultural and creative industries to develop new business models; consideration is to be made of how this process can function with more legal certainty and fairness and respect for right holders; importance of transparency and of ensuring a level playing field is necessary; in this regard, protection of right holders within the copyright and intellectual property framework is necessary in order to ensure recognition of values and stimulation of innovation, creativity, investment, to guarantee the success of a Digital Single Market, offering all diverse and quality cultural and creative works.
Amendment 379 #
Proposal for a directive
Recital 37 c (new)
Recital 37 c (new)
(37 c) This is why liability exemptions can only apply to genuinely neutral and passive online service providers, and not to services that play an active role in distributing, promoting and monetising content at the expense of creators.
Amendment 380 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1)(a) of Directive 2009/24/EC and Article 11(1) of this Directive, permitting cultural heritage institutions, to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for the sole purpose of the preservation of such works or other subject-matter and to the extent necessary for such preservation, without modifying them.
Amendment 384 #
Proposal for a directive
Recital 38 – paragraph 1
Recital 38 – paragraph 1
Where information society service providers store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities and performing an act of communication to the public, they are obliged to conclude licensing agreements with rightholders, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council34 reproduction as well as an act of communication to the public, including the act of making content available, the process of which began with the uploading by their users of the copyrighted works and subject-matter, they are obliged to conclude licensing agreements with rightholders who so request, covering rights of reproduction and communication to the public, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council34. In respect of the liability exemption provided for in Article 14, it is necessary to verify whether the service provider plays an active role, including by optimising copyrighted uploaded content for the purpose of selection, categorisation or aggregation, or by promoting or recommending them, irrespective of the means used to that end. Where a service provider plays an active role it cannot be exempt from liability as provided for in Article 14 of Directive 2000/31/EC. Unless they are acting in a professional capacity, the liability of service users for copyrighted acts is covered by the licensing contracts concluded by the rightholders with the service providers. _________________ 34 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ L 178, 17.7.2000, p. 1–16).
Amendment 388 #
Proposal for a directive
Recital 38 – paragraph 1
Recital 38 – paragraph 1
Amendment 397 #
Proposal for a directive
Article 7 – title
Article 7 – title
Use of out-of-commerce works by cultural heritage institutions
Amendment 397 #
Proposal for a directive
Article 4 – paragraph 2 – subparagraph 1
Article 4 – paragraph 2 – subparagraph 1
Member States may provide that the exception adopted pursuant to paragraph 1 does not apply generally or as regards specific types of works or other subject- matter, to the extent that adequate licences authorising the acts described in paragraph 1 are easily available in the market.
Amendment 398 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
1. Member States shall provide that when a collective managementafter consulting with rightholders and their representing organisations, on behalf of its members, conclucultural heritage institutions and other users, shall provides a non-exclusive licence for non-commercial purposes with a cultural heritage institutionlegal mechanism enabling exclusive or non-exclusive licences for the digitisation, distribution, communication to the public or making available of out-of-commerce works or other subject-matter permanently in the collection of the institution, such a non-exclusive licence may be extended or presumed to apply to rightholders of the same category as those covered by the licence who are not represented by the collective management organisation, provided that:
Amendment 400 #
(a) the collective management organisation is, on the basis of mandates from rightholders, broadly representative of rightholders in the category of works or other subject-matter and of the rights which are the subject of the licenceorganisation in charge of granting licences is broadly representative of rightholders according to the legislations of the Member State legislation;
Amendment 402 #
Proposal for a directive
Article 7 – paragraph 1 – point c
Article 7 – paragraph 1 – point c
(c) all rightholders are duly informed and may at any time object to their works or other subject- matter being deemed to be out of commerce and exclude the application of the licence to their works or other subject- matter.
Amendment 405 #
Proposal for a directive
Article 7 – paragraph 1 – subparagraph 1 (new)
Article 7 – paragraph 1 – subparagraph 1 (new)
This legal mechanism may, among others, be based on extended collective licensing, a legal mandate or a presumption.
Amendment 407 #
Proposal for a directive
Recital 38 – paragraph 2
Recital 38 – paragraph 2
In respect of Article 14, it is necessary to verify whether the service providerthe application of Article 14 of the Directive 2000/31/EC, unless it has been ascertained that the role of the service provider is of a purely passive nature, the service provider would not be eligible for the liability exemption of Article 14 of the Directive 2000/31/EC and would be deemed to plays an active role, including by optimising. An active role includes, inter alia, optimisation for the purpose of the presentation by the service of the uploaded works or subject-matter or their promoting themon by the service, irrespective of the nature of the means used therefor. A service provider can be deemed active even where it has no editorial control over the content which it makes available.
Amendment 411 #
Proposal for a directive
Article 7 – paragraph 4 – introductory part
Article 7 – paragraph 4 – introductory part
4. Member States shall ensure that the licences referred to in paragraph 1 are sought from a collective management organisation that is representative forin the Member State where:
Amendment 430 #
Proposal for a directive
Recital 38 a (new)
Recital 38 a (new)
(38 a) The EU copyright framework aims at providing a high level of protection, especially for authors, which is crucial in order to maintain the dynamism of European intellectual creation. The EU copyright framework should remain consistent with this objective and therefore should not introduce unnecessary, unbalanced and unjustified exceptions such as an exception for "user generated content", where the issues related to the use of works or other subject-matters by users comes from the interpretation made of the rules applicable to online service providers that play an active role in distributing the contents. In order to clarify the situation and provide legal certainty, the liability of online service providers which give access to user generated content should be clarified. In this regard, such online service providers should not be covered by the liability exemption and licencing agreements concluded with rightholders should cover the acts of users who do not act on a professional basis.
Amendment 432 #
Proposal for a directive
Recital 38 a (new)
Recital 38 a (new)
(38 a) In order to ensure the correct functioning of any licensing agreement, or to prevent unauthorised access to copyright protected works or other subject-matter uploaded by the users, information society service providers storing and disseminating this content and providing public access to it must take appropriate and proportionate measures to ensure the protection of these copyrighted works and other subject- matter, for example by implementing effective technologies.
Amendment 433 #
Proposal for a directive
Recital 38 b (new)
Recital 38 b (new)
(38 b) This obligation is also incumbent upon those information society service providers that can claim the liability exemption provided for in Article 14 of Directive 2000/31/EC when they store or provide public access to a significant amount of copyrighted works and other subject-matter uploaded by their users. A service provider not taking appropriate action or not responding effectively to requests made by rightholders to enter into licensing agreements will not be able to claim the protection provided by Article 14 (1) of Directive 2000/31/EC.
Amendment 434 #
Proposal for a directive
Article 7 – title
Article 7 – title
Use of out-of-commerce works by cultural heritage institutions
Amendment 439 #
Proposal for a directive
Recital 39
Recital 39
(39) Collaboration between information society service providers storing and providing access to the public to large amounts of copyright protected works or other subject-matter uploaded by their users and rightholders is essential for the functioning of technologies, such as content recognition technologies. In such cases, rightholders shouldmust provide the necessary data to allow the services to identify their content and the services shouldmust be transparent towards rightholders with regard to the deployed technologies, to allow the assessment of their appropriateness. The services should in particular provide rightholders with information on the type of technologies used, the way they are operated and their success rate for the recognition of rightholders' content. Those technologies should also allow rightholders to get information from the information society service providers on the use of their content covered by an agreement. In cases when the measures and technologies established on the basis of this Directive affect the uploading of content that is covered by an exception or authorisation, service suppliers must be required to set up complaint and redress mechanisms for the benefit of the users whose content has been affected by these measures. Such mechanisms must maintain a balance between the need to ensure that content covered by exceptions to copyright or authorisations is not unduly affected by the measures, and the need to ensure that complaint and redress mechanisms do not unreasonably prejudice the effectiveness of the measures. To achieve this aim, the complaint and redress mechanisms must allow rightholders to receive adequate information to assess complaints and respond to them. The complaint and redress mechanisms must also allow a suitable period of time for rightholders to respond to complaints.
Amendment 441 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
1. Member States shall provide that when a collective management organisa, in agreement with rightholders, users and cultural heritage institutions, on behalf of its members, concludes a non-exclusive licence for non-commercial purposes with a cultural heritage institutiona legal mechanism whereby non-exclusive licences may be granted for the digitisation, distribution, communication to the public or making available of out-of- commerce works or other subject-matter permanently in the collections of the institution, such a non-exclusive licence may be extended or presumed to apply to rightholders of the same category as those covered by the licence who are not represented by the collective management organisationsuch institutions, provided that:
Amendment 442 #
Proposal for a directive
Recital 39
Recital 39
(39) Collaboration between information society service providers storing and providing access to the public to largesignificant amounts of copyright protected works or other subject-matter uploaded by their users and rightholders is essential for the functioning of technologies, such as content recognition technologies. In such cases, rightholders should provide the necessary data to allow the services to identify their content and the services should be transparent towards rightholders with regard to the deployed technologies, to allow the assessment of their appropriateness. The services should in particular provide rightholders with information on the type of technologies used, the way they are operated and their success rate for the recognition of rightholders' content. Those technologies should also allow rightholders to get information from the information society service providers on the use of their content covered by an agreement. In accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation, those technologies should not require the identification of individual users and the processing of their personal data and therefore should not lead to general monitoring obligation.
Amendment 443 #
Proposal for a directive
Article 7 – paragraph 1 – point a
Article 7 – paragraph 1 – point a
Amendment 449 #
Proposal for a directive
Article 7 – paragraph 1 a (new)
Article 7 – paragraph 1 a (new)
1a. This legal mechanism may take the form of an extended collective licence or a presumption when a collective management organisation is, on the basis of mandates from rightholders, broadly representative of rightholders in the category of protected works or other subject-matter and of the rights which are the subject of the licence;
Amendment 451 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
(39 a) The use of technical measures is essential for online licensing and rights management purposes, and content recognition technologies in particular are readily available and affordable. Such technical measures do not require the identity of uploaders and involve targeted technical cooperation between rightholders and information service providers, based on the data provided by rightholders. Provided they are used in such a way, the use of technical measures is fully compatible with Article 15 of Directive 2000/31/EC and the European Charter of Fundamental Rights. In order to promote collaboration between rightholders and information society services providers, Member States should encourage industry agreements between rightholders and information society services, and if necessary the Commission may bring forward proposals for a Code of Conduct at a later date.
Amendment 454 #
Proposal for a directive
Recital 39 a (new)
Recital 39 a (new)
(39 a) The technical measures established should make it possible, at the request of and in association with the rightholders, to recognise given target content. Their aim is not to impose a general obligation to check and run data searches on the content, and do not require the use of the personal data of the end user. These measures are therefore fully compatible with Article 15 of Directive 2000/31/EC and the European Charter of Fundamental Rights.
Amendment 456 #
Proposal for a directive
Article 7 – paragraph 2 – subparagraph 1
Article 7 – paragraph 2 – subparagraph 1
A work or other subject-matter shall be deemed to be out of commerce when the whole work or other subject-matter, in all its translations, versions and manifestations, is not available to the public through customary channels of commerce and cannot be reasonably expected to become so.
Amendment 456 #
Proposal for a directive
Recital 39 b (new)
Recital 39 b (new)
(39 b) Member States should ensure that an intermediate mechanism exists enabling service providers and rightholders to find an amicable solution to any dispute arising from the terms of their cooperation agreements. To that end, Member States should appoint an impartial body with all the relevant competence and experience to assist the parties in the resolution of their dispute.
Amendment 457 #
Proposal for a directive
Recital 39 c (new)
Recital 39 c (new)
(3 c) It should be recalled that, both in general and in the light of the references to Article 3 of Directive 2001/29/EC made in this directive, a copyrighted work and/or other subject-matter is communicated to the public and/or made available to the public when a natural or legal person affords access to it to persons outside their close and personal circle, defined as being their family or most immediate associates. For this purpose it makes no difference whether the latter can gain access to the copyrighted works and/or other subject-matter at the same place or in different places, and at the same time or at different times.
Amendment 460 #
Proposal for a directive
Recital 40
Recital 40
(40) Certain rightholders such as authors and performers need information to assess the economic value of their rights which are harmonised under Union law. This is especially the case where such rightholders grant a licence or a transfer of rights in return for remuneration. As authors and performers tend to bare in a weaker contractual position when they grant licences or transfer their rights, they need accurate information to assess the continued economic value of their rights, compared to the remuneration received for their licence or transfer, but they often face a lack of transparency. Therefore, the sharing of adequate information by their contractual counterparts orand subsequent transferees or licences, as well as their successors in title is important for the transparency and balance in the system that governs the remuneration of authors and performers. The reporting and transparency obligation should follow the work across all form of exploitation and across borders.
Amendment 464 #
Proposal for a directive
Article 7 – paragraph 3 – point c – paragraph 1
Article 7 – paragraph 3 – point c – paragraph 1
the possibility of rightholders to object, referred to in point (cb) of paragraph 1;
Amendment 464 #
Proposal for a directive
Recital 41
Recital 41
(41) When implementing transparency obligations, the specificities of different content sectors and of the rights of the authors and performers in each sector should be considered. Member States should consult all relevant stakeholders as that should help determine sector-specific requirements and standard reporting statements and procedures. Collective bargaining should be considered as an option to reach an agreement between the relevant stakeholders regarding transparency. To enable the adaptation of current reporting practices to the transparency obligations, a transitional period should be provided for. The transparency obligations do not need to apply to agreements concluded with collective management organisations as those are already subject to transparency obligations under Directive 2014/26/EU, on the condition that Member States have transposed Directive 2014/26/EU and taken all necessary measures to ensure that the management of all collective management organisations is carried out in a sound, prudent and appropriate manner. Member States should also ensure that collective management organisations act in the best interest of the right holders whose rights they represent and regularly, diligently and accurately distribute and pay amounts due to rightholders and make public an annual transparency report, in full compliance with Directive 2014/26/EU.
Amendment 465 #
Proposal for a directive
Article 7 – paragraph 4 – introductory part
Article 7 – paragraph 4 – introductory part
4. Member States shall ensure that the licences referred to in paragraph 1 are sought from a collective management organisation that is representative forin the Member State where:
Amendment 480 #
Proposal for a directive
Recital 42
Recital 42
(42) Certain contracts for the exploitation of rights harmonised at Union level are of long duration, offering few possibilities for authors and performers to renegotiate them with their contractual counterparts or their successors in title. Therefore, without prejudice to the law applicable to contracts in Member States, there should be a remuneration adjustment mechanism for cases where the remuneration originally agreed under a licence or a transfer of rights is disproportionately low compared to the unanticipated relevant revenues and the benefits derived from the exploitation of the work or the fixation of the performance, including in light of the transparency ensured by this Directive. The assessment of the situation should take account of the specific circumstances of each case as well as of the specificities and practices of the different content sectors. Where the parties do not agree on the adjustment of the remuneration, the author or performer should be entitled to bring a claim before a court or other competent authority.
Amendment 508 #
Proposal for a directive
Article 2 – paragraph 1 – subparagraph 2
Article 2 – paragraph 1 – subparagraph 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 decisivesignificant influence upon such organisation;
Amendment 513 #
Proposal for a directive
Article 13 – title
Article 13 – title
Use of protected content by information society service providers storing and giving access to large amounts of works andor other subject-matter uploaded by their users
Amendment 514 #
Proposal for a directive
Article 13 b (new)
Article 13 b (new)
Article 13b 1. Member States shall ensure that when an audiovisual author has transferred or assigned his making available right to a producer, that author shall retain the right to obtain an equitable remuneration. 2. This right to obtain an equitable remuneration for the making available of the author's work is inalienable and cannot be waived. 3. The administration of this right to obtain an equitable remuneration for the making available of the author's work shall be entrusted to collective management organisations representing audiovisual authors, unless other collective agreements, including voluntary collective management agreements, guarantee such remuneration to audiovisual authors for their making available right. 4. Authors' collective management organisations shall collect the equitable remuneration from audiovisual media services making audiovisual works available to the public.
Amendment 515 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Information society service providers that store and provide to the public access to large amounts ofprotected works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their protected conclude fair and balanced agreements with all rightholders governing such content at the request of those rightholders, unless they are eligible for the liability exemption provided for in Article 14 of Directive 2000/31/EC. Under the terms of the agreements with rightholders, these service providers shall take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject- matter. These agreements should cover the liability of users of information society service providers when these users are not acting professionally for acts falling under Articles 2 and 3 of Directive 2001/29/EC that they perform. When information society service providers (i) play an active part but are not required to conclude a licence agreement by the holders of rights to works or other subject- matter or to prevent the availability on their services ofstored by them and to which they provide public access, or (ii) are eligible for the liability exemption provided for in Article 14 of Directive 2000/31/EC, but store and provide to the public access to a large number of protected works or other subject-matter, these service providers shall take measures to prevent protected works or other subject-matter identified by rightholders through thein cooperation with the service providers from being made available by their services. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter. Rightholders shall provide information society service providers with all relevant and necessary details to ensure the functioning of measures taken by the service providers pursuant to this article.
Amendment 522 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Member States shall ensure that authors and performers receive on a regular basis and taking into account the specificities of each sector, accurate, timely, adequate and sufficient information on the exploitation and promotion of their works and performances from those to whom they have licensed or transferred their rights, including subsequent transferees or licensees, notably as regards modes of promotion, exploitation, revenues generated and remuneration due.
Amendment 527 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1. Any complaint filed under the mechanism shall be processed by the relevant rightholder within a reasonable period of time. The rightholder shall give evidence for the rights being upheld.
Amendment 530 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. The obligation in paragraph 1 shall be proportionate and effective and shall ensure an appropriate high level of transparency in every sector. However, in those cases where the administrative burden resulting from the obligation would be disproportionate in view of the revenues generated by the exploitation of the work or performance, Member States may adjust the obligation in paragraph 1, provided that the obligation remains effective and ensures an appropriate level of transparency and the disproportionality is duly justified.
Amendment 531 #
Proposal for a directive
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
2a. Member States shall ensure that sector-specific standard reporting statements and procedures are developed through stakeholder dialogues.
Amendment 531 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
3. Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments. In cooperation with the Member States, the Commission shall encourage the exchange of best practices across the Union regarding the results of any cooperation established pursuant to implementation of paragraph 1 of this Article.
Amendment 534 #
Proposal for a directive
Article 14 – paragraph 3
Article 14 – paragraph 3
Amendment 537 #
Proposal for a directive
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC and Article 11(1) of this Directive for reproductions and extractions made by research organisations in order to carry out text and data mining of works or other subject-matter to which they have lawfulacquired lawful licence-based access for the purposes of non-commercial scientific research.
Amendment 549 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Member States shall ensure that authors and performers, or representatives they appoint, are entitled to request additional, equitable, appropriate remuneration from the party with whom they entered into a contract for the exploitation of the rights when, or their successor in title, when, it is duly justified to claim that the remuneration originally agreed is disproportionately low compared to the subsequent relevant revenues and benefits derived from the exploitation of the works or performances.
Amendment 556 #
Proposal for a directive
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
Member States may decide that the obligation in paragraph 1 does not apply when the contribution of the author or performer is not significant having regard to the overall work or performance.
Amendment 556 #
Proposal for a directive
Article 3 – paragraph 3 a (new)
Article 3 – paragraph 3 a (new)
3a. Copies of content obtained for mining text and data shall be stored or preserved in a controlled and protected way, for a reasonable period of time, in the sole purpose of verification of results. Any copies of content obtained for mining text and data which are stored or preserved for longer than what is reasonable, shall constitute infringing copies.
Amendment 574 #
Proposal for a directive
Article 4 – paragraph 1 – introductory part
Article 4 – paragraph 1 – introductory part
1. Member States shall provide for an exception or limitation to the rights provided for in Articles 2 and 3 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1) of Directive 2009/24/EC and Article 11(1) of this Directive in order to allow for the digital use of works and other subject- matter or extract thereof, except for contents that are primarily intended to the educational and musical scores markets, for the sole purpose of illustration for teaching, to the extent justified by the non-commercial purpose to be achieved, provided that the use:
Amendment 612 #
Proposal for a directive
Article 4 – paragraph 2 – subparagraph 1
Article 4 – paragraph 2 – subparagraph 1
Member States may provide that the exception adopted pursuant to paragraph 1 does not apply generally or as regards specific types of works or other subject- matter, to the extent that adequate licences authorising the acts described in paragraph 1 are easily available in the market.
Amendment 631 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Member States mayshall provide for fair compensation for the harm incurred by the rightholders due to the use of their works or other subject-matter pursuant to paragraph 1.
Amendment 647 #
Proposal for a directive
Article 5 – paragraph 1
Article 5 – paragraph 1
Member States shall provide for an exception to the rights provided for in Article 2 of Directive 2001/29/EC, Articles 5(a) and 7(1) of Directive 96/9/EC, Article 4(1)(a) of Directive 2009/24/EC and Article 11(1) of this Directive, permitting cultural heritage institutions, to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for the sole purpose of the preservation of such works or other subject-matter and to the extent necessary for such preservation , without modifying them.
Amendment 677 #
Proposal for a directive
Article 7 – title
Article 7 – title
Use of out-of-commerce works by cultural heritage institutions
Amendment 678 #
Proposal for a directive
Article 7 – paragraph 1 – introductory part
Article 7 – paragraph 1 – introductory part
1. Member States shall provide that when a collective managementafter consulting with rightholders and their representing organisations, on behalf of its members, conclucultural heritage institutions and other users, shall provides a non-exclusive licence for non-commercial purposes with a cultural heritage institutionlegal mechanism enabling exclusive or non-exclusive licences for the digitisation, distribution, communication to the public or making available of out-of-commerce works or other subject-matter permanently in the collection of the institution, such a non-exclusive licence may be extended or presumed to apply to rightholders of the same category as those covered by the licence who are not represented by the collective management organisation, provided that:
Amendment 682 #
Proposal for a directive
Article 7 – paragraph 1 – point a
Article 7 – paragraph 1 – point a
(a) the collective management organisation is, on the basis of mandates from rightholders, broadly representative of rightholders in the category of works or other subject-matter and of the rights which are the subject of the licencorganisation in charge of granting licences is broadly representative of rightholders according to the law of the Member State;
Amendment 686 #
Proposal for a directive
Article 7 – paragraph 1 – point c
Article 7 – paragraph 1 – point c
(c) all rightholders are duly informed and may at any time object to their works or other subject- matter being deemed to be out of commerce and exclude the application of the licence to their works or other subject- matter.
Amendment 689 #
Proposal for a directive
Article 7 – paragraph 1 – subparagraph 1 (new)
Article 7 – paragraph 1 – subparagraph 1 (new)
This legal mechanism may, among others, be based on extended collective licensing, a legal mandate or a presumption.
Amendment 704 #
Proposal for a directive
Article 7 – paragraph 4 – introductory part
Article 7 – paragraph 4 – introductory part
4. Member States shall ensure that the licences referred to in paragraph 1 are sought from a collective management organisation that is representative forin the Member State where:
Amendment 720 #
Proposal for a directive
Article 9 a (new)
Article 9 a (new)
Article 9 a Exploitation of European audiovisual works on video-on-demand platforms 1. Member States shall ensure that producers and the transferees of the rights make their best efforts to make European audiovisual works available to the public on at least one video-on- demand platform. 2. Member States shall take appropriate measures to ensure the application of paragraph 1, including by encouraging the conclusion of professional agreements between representative organisations of authors, including their collective management organisations and representative organisations of producers and other stakeholders, as well as video- on-demand platforms, in a larger context of continuous exploitation of European audiovisual works.
Amendment 739 #
Proposal for a directive
Article 11 – title
Article 11 – title
Protection of press publications concerning digital uses
Amendment 747 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications and shall ensure that a fair share of the revenue derived from the uses of the press publishers right is attributed to journalists and other employees.
Amendment 756 #
Proposal for a directive
Article 11 – paragraph 1
Article 11 – paragraph 1
1. Member States shall provide publishers of press publications with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their press publications.
Amendment 761 #
Proposal for a directive
Article 11 – paragraph 1 a (new)
Article 11 – paragraph 1 a (new)
1 a. Member States shall provide publishers of press publications with an unwaivable right to obtain equitable remuneration for the use of their press publications.
Amendment 792 #
Proposal for a directive
Article 12 – paragraph 1
Article 12 – paragraph 1
Member States mayshall provide that where an author has transferred, assigned or licensed a right, including a right to claim a share of income, to a publisher, such a transfer, assignment or a licence constitutes a sufficient legal basis for the publisher to claim a share of the compensation for the uses of the work made under an exception or limitation to the transferred, assigned or licensed right.
Amendment 805 #
Proposal for a directive
Article 13 – title
Article 13 – title
Use of protected content by information society service providers storing and giving access to large amounts of works and otheworks or subject-matter uploaded by their users
Amendment 808 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. IWhere information society service providers that store and provide to the public access to large amounts ofoffer or make accessible to the public copyrighted works or subject- matter made available by their users, they shall conclude with rightholders so requesting licensing agreements for rights of reproduction and communication with public, unless they are eligible for the liability exemption provided for in Article 14 of Directive 2000/31/EC . Under the terms of the licensing agreements, these service providers shall, in cooperation with rightholders, take measures to ensure the proper functioning of agreements licensing the use of their works or other subject-matter. An information society service provider who fails to put in place technical measures quickly and efficiently to respond to requests from rightholders under this Article shall not benefit from the protection provided for in Article 14 (1) of Directive 2000/31/EC. Unless they are acting in a professional capacity, the liability of service users for copyright acts is covered by the licensing contracts concluded with the service providers. Information society service providers playing an active part but not required by rightholders to conclude a licensing agreement for works or other subject- matter uploaded by their usersstored by them and to which they provide public access shall, in cooperation with rightholders, take measures to prevent the availability on their services of works or other subject-matter identified by rightholders in cooperation with the service providers. Information society service providers eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC that nevertheless store and make available to the public a significant quantity of copyrighted works or other subject-matter shall, in cooperation with rightholders, take measures to ensure the proper functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter. Rightholders, for their part, shall provide information society service providers with the necessary details to ensure the proper functioning of measures taken by the service providers.
Amendment 819 #
Proposal for a directive
Article 13 – paragraph 1
Article 13 – paragraph 1
1. Information society service providers that store and provide to the public access to large amounts of works or other subject-matter uploaded by their users shall, in cooperation with rightholders, take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers. Those measures, such as the use of effective content recognition technologies, shall be appropriate and proportionate, and shall ensure the protection of individual user data as far as possible, in compliance with Directive 95/46/EC and Directive 2002/58/EC, and the General Data Protection Regulation. The service providers shall provide rightholders with adequate information on the functioning and the deployment of the measures, as well as, when relevant, adequate reporting on the recognition and use of the works and other subject-matter.
Amendment 840 #
Proposal for a directive
Article 13 – paragraph 2
Article 13 – paragraph 2
2. 2. Member States shall ensure that the service providers referred to in paragraph 1 put in place complaints and redress mechanisms that are available to users in case of disputes over the application of the measures referred to in paragraph 1, for example regarding content uploaded by users and withdrawn by service providers for no valid reason. The rightholders concerned must deal with the complaint within a reasonable period and provide adequate justification for the rights claimed by them.
Amendment 849 #
Proposal for a directive
Article 13 – paragraph 2 a (new)
Article 13 – paragraph 2 a (new)
2a. Regarding disputes over the application of the measures referred to in paragraph 1, for example as regards the application of a possible exception or authorisation for use for the content concerned, such mechanisms may not unduly detract from the effectiveness of the measures referred to in paragraph 1.
Amendment 860 #
Proposal for a directive
Article 13 – paragraph 3
Article 13 – paragraph 3
3. Member States shall facilitate, where appropriate, the cooperation between the information society service providers and rightholders through stakeholder dialogues to define best practices, such as appropriate and proportionate content recognition technologies, taking into account, among others, the nature of the services, the availability of the technologies and their effectiveness in light of technological developments. The Commission shall encourage the exchange of best practices across the European Union.
Amendment 867 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13 a Licensing agreements for information society service providers that store and/or provide access to the public to significant amounts of copyright protected works or other subject-matter uploaded by their users 1. Information society service providers that store and/or provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities and performing an act of communication to the public and of reproduction, shall conclude licensing agreements with rightholders, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council. 2. Service providers that play an active role, including by optimising the presentation of the uploaded works or subject-matter or promoting them, are not eligible for the safe harbour liability exemption. 3. Licenses acquired by information society service providers shall cover all the acts of their individual users, which are not for direct or indirect economic or commercial advantage.
Amendment 868 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13 a Protection of audiovisual authors for the making available of their works 1. Member States shall ensure that when an audiovisual author has transferred or assigned his making available right to a producer, that author shall retain the right to obtain a fair and proportionate remuneration. 2. This right to obtain a fair and proportionate remuneration for the making available of the author's work is inalienable and cannot be waived. 3. The administration of this right to obtain a fair and proportionate remuneration for the making available of the author's work shall be entrusted to collective management organisations representing audiovisual authors, unless other collective agreements, including voluntary collective management agreements, guarantee such remuneration to audiovisual authors for their making available right. 4. Authors' collective management organisations shall collect the fair and proportionate remuneration from audiovisual media services making audiovisual works available to the public.
Amendment 873 #
Proposal for a directive
Article 13 a (new)
Article 13 a (new)
Article 13a Member States shall provide that disputes between successors in title and information society services regarding the application of Article 13(1) may be subject to an alternative dispute resolution system. Member States shall establish or designate an impartial body with the necessary expertise, with the aim of helping the parties to settle their disputes under this system. The Member States shall inform the Commission of the establishment of this body no later than (date mentioned in Article 21(1)).
Amendment 882 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Member States shall ensure that authors and performers receive on a regular basis, and no less than once a year and taking into account the specificities of each sector, timely, adequate and sufficientaccurate and comprehensive information on the exploitation of their works and performances from those to whom they have licensed or transferred their rights, including subsequent transferees or licensees, notably as regards modes of exploitation, promotion, revenues generated and remuneration due.
Amendment 883 #
Proposal for a directive
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Member States shall ensure that authors and performers receive on a regular basis and taking into account the specificities of each sector, accurate, timely, adequate and sufficient information on the exploitation and promotion of their works and performances from those to whom they have licensed or transferred their rights,including subsequent transferees or licensees, notably as regards modes of promotion, exploitation, revenues generated and remuneration due.
Amendment 902 #
Proposal for a directive
Article 14 – paragraph 2
Article 14 – paragraph 2
2. The obligation in paragraph 1 shall be proportionate and effective and shall ensure an appropriate high level of transparency in every sector. However, in those cases where the administrative burden resulting from the obligation would be disproportionate in view of the revenues generated by the exploitation of the work or performance, Member States may adjust the obligation in paragraph 1, provided that the obligation remains effective and ensures an appropriate level of transparency, as well as author's right to audit.
Amendment 908 #
Proposal for a directive
Article 14 – paragraph 2 a (new)
Article 14 – paragraph 2 a (new)
2 a. Member States shall ensure that sector-specific standard reporting statements and procedures are developed through stakeholder dialogues.
Amendment 918 #
Proposal for a directive
Article 14 – paragraph 3
Article 14 – paragraph 3
3. Member States may decide that the obligation in paragraph 1 does not apply when the contribution of the author or performer is not significant having regard to the overall work or performanceshall ensure that the representative organisations of relevant stakeholders determine sector- specific standard reporting statements and procedures and foster automated processing making use of digital technologies and international identifiers of works.
Amendment 923 #
Proposal for a directive
Article 14 a (new)
Article 14 a (new)
Article 14 a Unwaivable right to equitable remuneration 1. Member States shall ensure that when a performer or audiovisual author has transferred or assigned his making available right to a producer, that performer or audiovisual author shall retain the right to obtain an equitable remuneration. 2. This right to obtain an equitable remuneration for the making available of the performer or audiovisual author's work is inalienable and cannot be waived. 3. The administration of this right to obtain an equitable remuneration for the making available of the performer or audiovisual author's work shall be entrusted to collective management organisations representing audiovisual authors and/or performers, unless other collective agreements, including voluntary collective management agreements, guarantee such remuneration to performers or audiovisual authors for their making available right. 4. Performers' and audiovisual authors' collective management organisations shall collect the equitable remuneration from audiovisual media services making works available to the public.
Amendment 929 #
Proposal for a directive
Article 15 – paragraph -1 (new)
Article 15 – paragraph -1 (new)
-1 Member States shall ensure that authors and performers are entitled to a proportionate remuneration of the revenues derived from all modes of exploitation and every use of their works.
Amendment 939 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Member States shall ensure that authors and performers, or representatives they appoint, are entitled to request additional, fair, appropriate remuneration from the party with whom they entered into a contract for the exploitation of the rights when, or their successor in title, when it is duly justified to claim that the remuneration originally agreed is disproportionately low compared to the subsequent relevant revenues and benefits derived from the exploitation of the works or performances.
Amendment 940 #
Proposal for a directive
Article 15 – paragraph 1
Article 15 – paragraph 1
Member States shall ensure that authors and performers are entitled to request additional, appropriatequitable remuneration from the party with whom they entered into a contract for the exploitation of the rights when the remuneration originally agreed is disproportionately low compared to the subsequent relevant revenues and benefits derived from the exploitation of the works or performances.
Amendment 956 #
Proposal for a directive
Article 15 – paragraph 1 a (new)
Article 15 – paragraph 1 a (new)
Member States shall ensure that representative organisations of authors and performers may make the claim for additional, equitable remuneration on behalf of their members.
Amendment 964 #
Proposal for a directive
Article 16 – paragraph 1
Article 16 – paragraph 1
Member States shall provide that disputes concerning the transparency obligation under Article 14 and the contract adjustment mechanism under Article 15 may be submitted to a voluntary,n alternative dispute resolution procedure.
Amendment 969 #
Proposal for a directive
Article 16 – paragraph 1 a (new)
Article 16 – paragraph 1 a (new)
Member States shall ensure that representative organisations of authors and performers may represent their members in the alternative dispute resolution procedure.