National ambassadors to the EU (COREPER) gave a negotiating mandate on Friday 25 May to the Bulgarian Presidency of the Council of the EU for the ‘copyright’ directive.
The new text notes that states are free to retain a criterion of scale and/or originality for protecting press publications and does not include the idea of a lighter responsibility regime for micro- and small companies for the value gap.
The draft directive unveiled in September 2016 introduces new exceptions to copyright rules and lays down new measures to ensure better protection of European creation.
After 18 months of talks, the member states have finally reached agreement in principle (a general orientation) by qualified majority in view of the negotiations with Parliament.
We understand that Germany, Finland and Hungary voted against the text, wile Belgium and the Netherlands issued a scrutiny reservation.
Council’s position under the magnifying glass
The consolidated text should be made available shortly. It keeps the idea of a neighbouring right for press editors, that would last year, except for ‘non-substantial parts.’ Article 11 stipules in fact that the member states are ‘free to determine the non-substantial nature of parts of press publications, taking account of whether the extracts are the expression of an intellectual creation of their author or whether these extracts are individual words or very short extracts, or both criteria.’ (our translation).
Recital 32 notes that this legal protection only applies to press editors registered in a member state in the sense of the TFU treaty, in other words, when their registered offices, head office or main location of activity are within the EU.
Recital 34 notes that the extracts judged to be non-substantial have ‘no independent economic signification.’
On the value gap (Article 13), the new Bulgarian compromise conserves the idea of obliging platforms that do not benefit from authorisation from the rights holder, to take effective and proportionate measures to present the availability of protected works and to take action to withdraw notified works.
The text notes in Article 2(5) that the platforms concerns are those that stock and give access to a ‘large number’ of protected works that they organise and promote in the prospect of making a ‘profit.’ All this taking account of a combination of elements, such as the service’s audience and the number of protected works downloaded by its users (Recital 37b).
Unlike the previous versions, it no longer includes a lighter responsibility system for small and micro enterprises (see EUROPE 12008).
Reactions and next steps
The European Commission is reported to have made it known in a round-the-table discussion that the text is not optimal, but is does at least allow the preservation of the proposals objectives.
The United Kingdom is reported to have spoken about an ‘elegant solution’ to Article 13 since it takes account of the concerns for proportionality.
Germany is reported to have voted against the text for three main reasons: (1) it wanted a single criterion of size for Article 11; (2) it wanted to exonerate from Article 13 companies with an annual turnover of below €20 million; and (3) it demanded the establishment in each member state of a natural appeals mechanism in the case of challenges to the withdrawal and/or blocking of a work.
Hungary is reported to have explained its position by rejecting the fragmentation caused by Article 11 (neighbouring rights).
A delegation then explained to us that is had a problem with the wording of the text, which did not stand up legally. It said that Article 11 should mention parts that ‘are not’ the expression of intellectual creation by their author because one judges the non-substantial nature, rather than the opposite, and such wording would not hold up in court.
The question will be briefly addressed at the Competitiveness Council on Monday 28 May (see related article).
The vote in the European Parliament’s legal affairs committee is expected on 20 or 21 June. The biggest difference in the two institutions’ positions is neighbouring rights at this stage, which rapporteur Axel Voss wishes to extend to press agencies (see EUROPE 11021). (Original version in French by Sophie Petitjean)