Negotiators in the European Parliament and the EU Council are now moving towards a mechanism to mitigate platform liability in the context of copyright reform. The European Commission should make proposals to this end on the basis of the discussions during the trilogue on Monday 3 December.
Indeed, it seems that the European Parliament is ready to consider a liability mitigation mechanism to address the value gap (Article 13). According to Parliament's negotiators, such a mechanism - considered essential by the Council - should respect the following principles: - it should be based on bilateral cooperation between right holders and platforms; - content that does not infringe copyright should be allowed to remain on the platform; - mitigation measures are neither mandatory nor prohibited; - automatic blocking should be avoided as far as possible; - the text should not exclude existing measures; - the Content ID system used by YouTube does not exempt the platform from concluding licences while the audiovisual sector should benefit from this mechanism. The Presidency of the Council, for its part, would have indicated that the mechanism could not be built on these last two principles.
The Commission's document will be distributed on 5 December.
What about the rest?
This reform, which introduces new exceptions to copyright rules and sets out new provisions to ensure better protection of creation on the Internet, still stumbles on many points. At this stage, discussions would be almost complete on the transparency obligation, the contract adaptation mechanism and the dispute settlement mechanism (Articles 14, 15 and 16). The trilogue of 3 December, which lasted 5.5 hours, would have made it possible to reach an agreement in principle on claims for compensation (Article 12). Article 16(a) would only have been briefly mentioned. On the other hand, the co-legislators would have discussed at length the creation of a neighbouring right for newspaper publishers (Article 11). But the key issues, namely the exclusion of SMEs, extracts or the duration of protection, would have been left out.
On the Austrian Presidency's side, there is still hope that the trilogue on 13 December will be the last, but several stakeholders, speaking anonymously, are more cautious. One of them refers to a more likely agreement in early January. (Original version in French by Sophie Petitjean)