The time is not right. The member states have not reached agreement on a general approach to the reform of copyright despite the most recent and promising Bulgarian compromise text on the table.
The member states’ representatives to the EU (COREPER) have instructed the Bulgarian Presidency of the Council of the EU to make a number of changes to the rights of press editors and the value gap.
The draft directive was unveiled in September 2016. It introduces new exceptions to copyright and lays down new measures to ensure better projection of works covered by copyright. The Council is close to a common position and the committee vote at the European Parliament has been postponed until 20 -21 June (see EUROPE 11999).
Value gap (article 13). Discussing a detailed compromise text (see EUROPE 12007), the member states’ sherpas were divided over the scope of application of the measures to tackle the value gap, in other words the gap between the profits made by platforms from a copyright-protected work and the amounts creators actually receive.
Some member states called for an extension of the definition of service suppliers which share content online (article 2, paragraph 5) by scrapping the reference to a ‘large amount of works’ and the aim of making profit, while other member states called for small and medium-sized enterprises to be excluded. It appears that most delegations go along with the scrapping of the ‘knowledge’ criterion.
According to a close source, some delegations called for marginal changes to the exemption of liability for platforms applying effective and proportionate measures to prevent unauthorised works from being made available and which have a 'notice and stay-down obligation' for unauthorised content.
Neighbouring rights (article 11). The sherpas backed the idea of a neighbouring rights for press editors that would apply for a year.
They have not agreed yet on the criterion or criteria the new law would be based on. Some member states call for originality criteria, as set out into the Bulgarian Presidency’s compromise text, while others prefer a criterion of scale. The idea of a double criterion based on both originality and scale, also generated ‘reticence.’
The Czech proposal of the directive not applying retroactively (to parts of texts published before the future rules come into force) was backed by 18 member states, explained the Czech attaché on Twitter.
Exceptions for searching text and data (article 3). We understand that the Bulgarian draft compromise on searching has been endorsed by the permanent representatives. It foresees exemption from the copyright rules for 'text & data mining' for the domain of research and an optional exception for other domains (article 3a).
A minority of delegations repeated their desire to restrict this new exception to temporary copies of free material.
The Bulgarian draft compromise can be found at https://bit.ly/2HVkQfA (Original version in French by Sophie Petitjean)