The Council of the European Union has reached a temporary solution on the introduction of a neighbouring right for newspaper publishers, following the change in Hungary’s position. This is effectively the outcome of the compromise proposal put on the table by the Bulgarian Presidency of the Council of the EU for copyright reform.
It should be recalled that the draft directive presented in September 2016 introduces new exceptions to copyright rules and introduces further provisions to improve the protection of protected content. It tackles the issue of the value gap or the disparity between the profits made by the platforms from protected content and what the content creators should really receive. So far, neither the Parliament nor the Council have established their respective positions. The vote by the legal affairs committee at the European Parliament was postponed for the first time in March and for a second time in April and this vote is becoming increasingly uncertain. The Council, however, appears to be moving forward a bit more quickly. The Bulgarian Presidency has drafted a compromise text focusing on the entire draft. This text will be submitted to the intellectual property working party on 28 March and will be discussed again on 11 April next, before being sent to the respective national attachés.
The consolidated draft text seen by EUROPE removes any references to content recognition techniques and maintains the neighbouring law for newspaper publishers. It also extends the text mining exception and introduces the concept of “collective licensing with an extended effect”.
Value gap: “efficient” measures
The Presidency's text clarifies the fact that a platform is not “responsible” for an act of communication when it applies efficient measures to prevent the availability of non-authorised protected content and when it takes measures needed to withdraw the content in question and prevent its reappearance after notification from a rightsholder. The Presidency calls on the European Commission to publish guidelines that will help clarify what it means by efficient and proportionate measures. It also proposes to take into account the nature of the services in question and their size, including public services: the quantity and kind of content downloaded by service users and the availability and costs of the measures, including their effectiveness in light of technological developments.
The Presidency tackles the difficult questions of the kinds of platforms affected, the concept of an act of communication to the public (which effectively requires the granting of a license) and the link between the e-commerce directive and its preambles. It is therefore targeting platforms that grant access to a large amount of content, with the objective of obtaining profit from them by organising and promoting them, whilst explaining that the evaluation must take place on a case-by-case basis taking into account the specific audience in question (preamble 37a). With regard to the concept of the act of communication, the Presidency text indicates that this kind of act is produced when the platforms take action and are aware of the consequences of the said action (preamble 38). The platforms cannot benefit from the regime of limited responsibility in the e-commerce directive when they are engaged in this kind of act (preamble 38c).
Law on newspaper publishers
It is more surprising, however, that the Bulgarian Presidency text removes the idea of a resumption of representation for newspaper publishers (option B). It also returns to the European Commission’s initial proposal, namely, the creation of a new neighbouring law for newspaper publishers, which is supported by France, Italy, Portugal, Spain, United Kingdom, Romania, Greece, Malta, Cyprus, Germany, Denmark and the Commission. According to the information we have received, Hungary has effectively changed its position and has left the group of member states opposed to this kind of law, which has hitherto constituted a minority block.
In relation to the initial proposal, the Presidency is suggesting that an originality criterion is included and for the duration of the said law to be reduced to 10 years instead of 20 years.
Other sensitive issues
For all remaining questions, the draft text maintains the idea of an exception or a limitation to copyright rules with regard to text and data mining carried out in the research domain and also adds a similar optional provision for the other domains (article 3a). According to the information we have received, this optional exception was still being contested very recently at the working party.
It introduces collective licensing “with extended effect” according to which the member states would be able to elect the rightsholders that are not represented by collective management bodies or necessarily covered on their territory by the licensing agreements that these companies have concluded (article 9a).
Situation at European Parliament
Parliament’s shadow rapporteurs were due to meet up during the day on 27 March, to discuss fair contractual remuneration (articles 14 to 16 and 16a). Despite our previous announcements, (see EUROPE 11984), the rapporteur, Axel Voss (EPP, Germany), has still not published a 4th version of the compromise amendments on the value gap. One parliamentary source also confirmed to us that no draft compromise on the creation of a neighbouring law had as yet been circulated. In this context and given the Easter holidays at the European Parliament, it is highly unlikely that the legal affairs committee will be able to give its verdict on the matter on 24 April as planned. (Original version in French by Sophie Petitjean)