Council meetings continue on the subject of the draft directive on copyright. On 11 and 12 September, national experts discussed difficult questions such as the creation of a neighbouring law for press publishers and value disparities, on the basis of the options presented by the Estonian Presidency (see EUROPE 11853).
Divisions over press publishing law
According to the information EUROPE has received, the member states are relatively divided on the first question. The draft directive is in favour of introducing a new neighbouring law for press publishers as a means of facilitating licensing concessions for the use of their online publications, recovering their investments and ensuring that their rights are effectively respected.
Option A presented by the Estonian Presidency calls for this law to be extended to extracts and was supported in the working group meeting by France, Germany, Spain, Portugal and Italy. France indicated that this kind of law would strengthen the negotiating position of press publishers and would offer them an opportunity to take matters to court, as well as recognise their economic value. Nonetheless, some member states, such as Germany, expressed their misgivings about extending this new law to the use of extracts.
Countries such as the Netherlands, Poland, Slovakia, Belgium, Hungary and Latvia, however, expressed their preference for the introduction of a “presumption of representation” which would enable publishers to conclude licensing agreements and the application of a law to the reproduction and broadcasting of their content (Option B). According to this Option B, “member states should seek to ensure that in the absence of proof to the country, the editor of a press publication should be considered as the person in charge of concluding licenses and that of seeking to apply measures, procedures and rectifications” included in the current rules on copyright. Italy is reportedly opposed to this and highlighted the fact that this presumption would make the system particularly complicated.
Several countries, such as Austria and the United Kingdom, did not speak on this question.
Many questions regarding value disparity
The two options submitted by the Estonian Presidency on value disparity also largely divided the member state experts. Working group discussions about this article took the entire day. They mainly focused on the situation in which certain online platforms provide free content to the public without necessarily remunerating the rights holders. It should be pointed out that the Estonian Presidency proposed that they should essentially accept the proposal from the Commission (Option A) or clarify the controversial notion of an “act of communication” introduced by the e-commerce directive (Option B).
During the mid-September meeting, the letter drafted by six member states (see EUROPE 11856) and more recently by Germany, questioned the Council legal service on the legality of the proposals, which provoked a debate. The German document dated 18 September, asked about the link between the 'InfoSoc' directive on the information society in the EU and the case law of the European Court of Justice. It also raised the question of the directive’s impact on service providers that do not have a subsidiary in Europe (such as YouTube) or academic platforms.
At this stage, it appears that the delegations had more questions than answers. The Council’s legal service, questioned by Belgium, the Czech Republic, Finland, Hungary, Ireland and the Netherlands, appeared to suggest, at a preliminary stage of its reflection, that the proposal for an examination did not pose a problem with regard to the Charter of Fundamental Rights.
The vote planned for the legal affairs committee (JURI) at the European Parliament, which was expected to take place on 9 October, has been postponed until November. A shadow rapporteurs’ meeting is due to take place next week on the question of contractual relations.
The German letter can be consulted at: http://bit.ly/2fd4668 (Original version in French by Sophie Petitjean)