The Bulgarian Presidency of the Council of the European Union is continuing with its consultations to reach, under its mandate, a political agreement of principle (general approach) on copyright reform.
In light of the discussions with the Committee of Permanent Representatives to the EU (Coreper) on Wednesday 31 January, Sofia could possibly shift towards some kind of neighbouring law for press publishers (article 11) and clarification of the notion of “communication to the public" (article 13).
It should be recalled that the draft directive introduces new exceptions to copyright rules and sets out new rules to ensure effective functioning of the market when using protected content and other objects. The responsible Parliamentary committee is expected to give its verdict on the question on 27 March (see EUROPE 11938), while the Council is attempting to reach a general approach as soon as possible.
Following an intellectual property working group meeting on 22 January (see EUROPE 11941), the Bulgarian Presidency requested the opinion (political approach) on 31 January from Coreper on the two most sensitive questions in the legislative draft, namely: the introduction of a neighbouring law for press editors (article 11) and the struggle against the value gap (article 13).
Towards a “limited” neighbouring law
Three groups of countries expressed themselves during the meeting: (1) France, Spain, Italy and Portugal support the idea of creating a neighbouring law for press publishers; (2) United Kingdom, Malta, Denmark, Cyprus, Romania, Greece and Germany are in favour of a limited and less comprehensive neighbouring law; (3) Belgium, the Netherlands, Luxembourg, the Czech Republic, Ireland, Lithuania, Slovakia, Slovenia, Croatia, Finland, Latvia and Hungary, might accept a presumption that would allow press publishers to continue to pursue online aggregators, such as Google News, which uses protected content without authorisation.
At the end of the discussion, the Bulgarian Presidency said that it intended to adopt the middle ground, namely, a limited neighbouring law. This law still needs to be defined: two countries are in favour of this option: Germany is defending a tax on extracts subject to time limits, while the United Kingdom is refusing to have criteria focusing on the size of the extract and/or a law applicable to each user.
Clarification of the act of communication
Discussions also focused on the value gap or the discrepancy between the profits made by the platforms from protected content and what the creators should really receive.
During the discussion, a majority of member states were in favour of a clarification of the notion of an “active communication to the public”. This principle was set out by directive 2001/29 and helps to identify the platforms that should have authorisation from the rights holder to store protected content and provide access to it.
Despite this relative consensus of principle, the delegations still do not appear to agree on what kind of clarification to provide. According to the information we have received, Hungary, Cyprus, France, Greece, Italy, Malta, Portugal and Spain would like to clarify the notion of communication to the public, in an effort to exclude active services from the limited liability regime included in the e-Commerce directive. Hungary and the United Kingdom expressed a wish to “mitigate liability" for platforms that set up content recognition technologies.
On the question of introducing these kinds of technologies, it appears that Denmark, France, Greece, Italy, Malta, Portugal and Spain would like to impose it on active and passive services, while Poland, Hungary and Croatia would like it to be limited to active services.
One source close to the dossier quietly suggested to us that it had been surprised by a European Commission declaration, according to which, the idea is not to affect the “e-Commerce” directive but “to not deviate from the key principles too much”. This information provided to us, however, has not yet been confirmed.
Creative industry concerned
Ahead of the Coreper meeting, the creative industry wrote to the Bulgarian Prime Minister and his ministers in charge of the dossier to request that they do not distance themselves from the Commission proposals too much. The signatories included the ECSA, EPC, Eurocinéma, GESAC, IFPI and ACT 20 and indicated that, “the Commission proposal is a step in the right direction”. The letter recommends that the platforms playing an active role (through the promotion or optimisation of content) are not authorised to benefit from the exception of responsibility included in the E-commerce directive.
Two further intellectual property working group meetings have been arranged for February on the 12th and 21st of the month respectively. (Original version in French by Sophie Petitjean)