The Bulgarian Presidency of the Council of the EU is getting off to a flying start. After barely two weeks since the beginning of its mandate, it has published an orientation paper tackling two of the most sensitive issues in the copyright review: the law on press publishers and the value gap. A work group discussion is planned for 29 January.
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.
Although the parliamentary committee responsible is due to give its verdict on 27 March (see EUROPE 11938), the Bulgarian Presidency would like to obtain a common position as soon as possible at the Council. In the document dated Tuesday 16 January, it calls on the national delegations to provide it with "political orientations" on article 11 (creation of a neighbouring law for press publishers) and article 13 (the fight against value gaps) in the draft directive that seeks to overcome the current stalemate.
Value gap: relegating sensitive questions to a clause
Following a range of very specific questions, the Bulgarian authorities are asking the delegations about the possibility of not making any reference, in article 13, to the controversial notions of “act of communication” and “limited liability”. It is suggesting that the existing principles in EU law are included in clause and which will help to decide the conditions according to which an uploaded contents platform involves a “copyright relevant act" that is not covered by limited liability under the e-commerce directive.
Specific questions focus on the need to: (1) clarify article 13 when indicating that the service providers who store and provide access to the downloaded content are fulfilling an effective communication or whether this involves independent measures that apply to platforms with a high content number (without clarification of the act of communication); (2) explicitly indicating that such services are not eligible under the limited liability regime covered by the e-commerce directive; and (3) distinguishing the kind of liability (general or targeted).
Clarifying press publishers' rights
The Bulgarian Presidency has taken up the two options identified by the previous Estonian Presidency, namely, the creation of a neighbouring law for press publishers
(option A) and a presumption that allows publishers to confirm and apply rights in their press publications (option B). It is suggesting to the delegations that they orientate themselves to option A, whilst asking them about the relevance of: (1) basing themselves on the scale of the extract rather than its originality; (2) excluding individual usage; and (3) examining the possibility of reducing the period by 20 years during which publishers control the right in question.
Please see the following Bulgarian documents at: http://bit.ly/2mOEmAZ et http://bit.ly/2EOHK5r (Original version in French by Sophie Petitjean)