Council of the EU working party discussions on copyright reform are experiencing desperate clashes on the issues of neighbouring law (article 11) and the value gap (article 13). The meeting on Monday 12 February was unable to overcome these divisions. Another meeting is planned for 21 February.
It should be recalled that the draft directive presented in September 2016 introduces new exceptions to copyright rules and sets out new provisions to ensure the effective functioning of the market for using protected content and other objects.
Given that the Parliament vote (legal affairs committee) could be put back from 27 March to 24 April, the Council is stumbling inexhaustibly on the two same issues: the creation of a neighbouring law for newspaper publishers and a way to rectify the value gap.
The discussions on 12 February during the "intellectual property" working party were still unable to obtain a compromise, despite the different options put on the table by the Bulgarian Presidency (see EUROPE 11958).
Neighbouring law, presumption… or both of them?
With regard to the introduction of a neighbouring law, one European source informed us that, “The group of states that supports the creation of a new neighbouring law (option A) has not expanded. Option B was also discussed but no conclusion has resulted from this”. According to the information we have received, the Dutch delegation repeated its proposal for an intermediate solution, namely, introducing a legal presumption that would allow newspaper publishers to pursue online aggregators that distribute unauthorised protected content (obligatory minimum harmonisation) whilst allowing the member states that so wish, to introduce a new neighbouring law (optional but completely harmonised). This approach is in line with the provisions envisaged by the member states on the exception relating to document and data mining (see EUROPE 11915). This Dutch proposal, however, is said to have been rejected by the European Commission as a whole.
It should also be pointed out that according to one observer, the discussions spent a lot of time on the originality criteria. The Bulgarian Presidency effectively proposed to only grant protection to publishers for content of a certain size and therefore excluding, "extracts from press articles limited to isolated words or very short extracts of text”. Our source also highlighted the fact that: during the Committee of Permanent Representatives to the EU (Coreper), only three member states - France, Spain and Germany - supported the criterion on the size of the extract. Italy and Portugal, for example, wanted an originality criterion.
Value gap: little progress
On Monday, the experts repeated their wish to clarify the notion of “an act of communication" but did not, however, agree on what path to follow. The meeting was particularly useful for raising a number of technical questions. Contrary to our expectations, Germany, which has just sealed its government coalition deal, did not make any contribution to the discussions on this article. One source informed us that the Commission was attaching increasing importance to its own initiative (arranging licenses for actors that do not benefit from exemptions to liability and the introduction of content recognition technologies) and it could re-invite itself along to the debates in the event of them failing to clarify the notion of “an act of communication”.
The next "intellectual property" experts' meeting has been arranged for 21 February. The following meeting was expected to take place on 16 March but has been postponed until 28 March due to a conference on copyright taking place on the same day. (Original version in French by Sophie Petitjean)