The most recent draft compromise at the Council of the EU on copyright reform still supports “efficient measures” to tackle value disparity and also continues to examine the relevance of a new neighbouring law for press publishers. This document dated 30 October will be discussed during the working group on 7 and 8 November.
It should be recalled that the draft directive introduces new exceptions to copyright rules, encourages licensing contracts and sets out new rules to ensure the effective functioning of the market for the use of protected content and other objects.
The two most controversial provisions at both the Parliament and at the Council involve the creation of a neighbouring law for press publishers (article 11) and value disparity (article 13). Although the draft report is not expected to be voted at the Parliament committee until the beginning of January, the Estonian Presidency is attempting to promote further development in the dossier at the Council.
Neighbouring law and value disparity
On 7 and 8 November, the “intellectual property” working group at the Council is due to examine another compromise based around the following proposals:
Neighbouring law. The Presidency is again looking at two options to facilitate the granting of licenses (see EUROPE 11853). As part of option A, it accepts the Commission proposal in favour of a new neighbouring law for press publishers valid for 20 years. In option B, it limits itself to a “presumption” for press publishers, according to which they are allowed to conclude license agreements and apply a law on the reproduction and broadcasting of their content.
Value disparity. The Presidency maintains and strengthens the measures proposed by the Commission to tackle value disparity, a principle whereby certain online platforms provide free content to the public without necessarily remunerating the rights holders. It considers that it is necessary that, “the service providers that store and provide access to a significant amount of content, take appropriate and proportionate measures to ensure the protection of protected content, such as efficient implementation technologies”. It also adds that this obligation should also apply to service providers that have a “limited responsibility” in compliance with the e-commerce directive. The evaluation also points out that the appropriate and proportionate character of the measures should also take into account the type of content downloaded, as well as the technological development and type of service provided.
Act of communication
At the request of France, Spain and Portugal, the Presidency clarifies the notion of an “act of communication” on the basis of decisions made by the European Court of Justice, the criteria of “knowledge of consequences” and the profit motive. “It is important to clarify that online services, whose main activity or one of their main activities, is to provide access to protected content downloaded by users, enter into an act of communication and provide this content to the public. Their action is taken in full awareness of the consequences of providing access to protected content, with the objective of making a profit and organising this in a way that the content is easily accessible on their services”. (Original version in French by Sophie Petitjean)