The Bulgarian Presidency of the Council of the EU has submitted a new draft compromise on article 13 of the copyright reform on the value gap. The new text is largely based on the German proposal and more explicitly suggests exempting small platforms such as Wikipedia.
It should be recalled that the draft directive presented in September 2016, introduces new exceptions to copyright and sets out new provisions to ensure the effective functioning of the market and the use of new protected content. It particularly tackles the issue of the value gap or the disparity between the profits made by the platforms out of protected content and what the creators of this content actually receive in payment.
The next working party on this question is planned for 8 March. On this occasion, the experts from the member states will examine a new compromise proposal that puts the finishing touches to the definitions (article 2) and clarifies the rights and responsibilities of the platforms with regard to protected content (article 13).
According to the information we have received, this proposal has already given rise to an alternative proposal from the French delegation.
Compromise proposal examined
As in the past, the Bulgarian Presidency is also suggesting that they only regulate platforms that store or provide access to a "significant" amount of content. On this occasion, however, it is explicitly proposing to exclude online encyclopaedias that are not commercially motivated, as well as educational and scientific materials, which had also been suggested by Germany (see EUROPE 11973).
In a clause, the Presidency explains that a calculation of what can be regarded as a “significant" amount will have to be carried out on a case-by-case basis and take into account a combination of factors such as, “the total number of files of copyright-protected content uploaded by the users of the services and the proportion of the protected content uploaded by the users in the overall amount of content available on the service”.
At the same time, in an effort to respond to the request by a large number of member states, the Bulgarian authorities are clarifying the notion of an “act of communication”, which prevents the platforms benefiting from an exemption from the "e-commerce" directive (2000/31/EC). They are proposing to discuss the question of an act communication or making something public in cases where a platform does not take efficient measures to prevent the publication of the content in question or when it has not taken action to withdraw it or prevent it reappearing.
These measures will have to be "appropriate and proportionate", whilst taking into account a number of factors such as the nature of the services, the amount and the type of works or other protected subject-matter uploaded by the users of the services, their availability and costs, as well as their effectiveness in light of technological developments. As explained by the Bulgarian Presidency in a clause, the different measures will be deemed appropriate and proportionate according to the kind of content provided (music, audiovisual content or text).
On 27 February, the shadow rapporteur at the European Parliament held a first exchange of views on the compromise amendment on article 13, which introduces an obligation on formally introducing a licensing agreement (see EUROPE 11967). At this stage, however, nothing conclusive has been produced on this question. (Original version in French by Sophie Petitjean)