The Estonian Presidency is continuing its efforts to make greater progress in the discussions on copyright reform. In a draft compromise to be analysed on Monday 4 and Tuesday 5 December, it is proposing to extend the scope of the exception proposed by the Commission on text and data mining.
It should be recalled that the draft directive introduces new exceptions to copyright rules and sets out new rules to ensure the effective functioning of the market when using protected content and other objects. The relevant Parliamentary commission is due to speak on the subject on 25 January and the Estonian Presidency is not sparing any efforts to make progress with discussions at the Council.
Exception for text mining
On 28 November, the Presidency submitted another compromise proposal for text and data mining (see the text on the page at: http://bit.ly/2j0ictI ). It is proposing to provide a broader voluntary exception in addition to the Commission’s compulsory exception.
In practice, the Estonian Presidency text maintains the idea of a compulsory exception or a limit to copyright that enables research bodies to carry out text and data mining for scientific research purposes (article 3). Nonetheless, it is also suggesting that a voluntary exception be added in favour of each undertaking involved in text or data mining activities (such as companies developing artificial intelligence) for “temporary” extractions of content that have been obtained legally. The text explains that this content has to be an integral part of the text and data mining and that the copies made should not be conserved after this process is completed.
This provision appears to have been called for by the Netherlands, Germany, Finland, Slovakia and Belgium, while Italy is opposed to it. It will be discussed on the 4 and 5 December at the intellectual property workgroup.
Neighbouring law: minimal harmonisation?
In addition to this issue, discussions are continuing at the Council on the two most controversial provisions in the draft directive, namely, the question of neighbouring law for newspaper publishers (article 11) and efforts to tackle value disparity (article 13).
On the former, the Presidency is proposing two options: creating this kind of neighbouring law (option 1) or the presumption of representation allowing publishers to conclude licensing agreements and to apply a law on the reproduction and distribution of their content (option 2). The two options, however, are facing strong opposition by a minority block.
According to one source close to the dossier, one possibility being mooted would be to move towards minimal harmonisation based on option 2 to enable newspaper publishers to negotiate licenses and, if needs be, begin legal proceedings. This approach would allow the member states that so wished to move further forward. This question, however, is not expected to be tackled under the Estonian Presidency.
Value disparity: exemption of liability
On article 13, the Presidency proposed on 23 November last that online content sharing service providers are defined as platforms that store and provide access to a “significant number” of protected works and are considered as carrying out an “act of communication” as soon as they organise content in view of making a profit. This would compel these providers, in compliance with the 2001/29 directive, to obtain authorisation from the rights holders to store and provide access to protected content (see the text on the page at: http://bit.ly/2AofgS3 ).
The draft compromise, however, introduces an exception of liability in cases where service providers take efficient measures to prevent the availability of non-authorised content and withdraw non-authorised content after notification from the rights holder.
According to the information we have received, Germany and United Kingdom are relatively satisfied, while France, Spain, Portugal and Italy are not going to support this proposal.
It should also be pointed out that at least one-member state has called for the introduction of an exception to the copyright rules for user generated content. (Original version in French by Sophie Petitjean)