European copyright rules are about to reach an important milestone on Thursday 13 December. The representatives of the European Parliament and the EU Council wish to complete two separate legislative proposals by this date: - the Copyright Reform Directive, and; - the Regulation on the end of geographical blocking in the EU for certain radio and television programmes.
Copyright: the Commission’s new text
The proposal revising the Copyright Directive proposes to create a similar right for newspaper publishers and addresses the distribution of income from a work placed on-line.
It is the subject of extraordinary media attention and lobbying, especially after having been rejected by the European Parliament before the summer (see EUROPE 12056). Interinstitutional negotiations have entered a decisive phase.
The main issue is the distribution of income, more commonly referred to as the 'values gap' (Article 13). During the last phase of the European Parliament/Council trilogue negotiations, the Parliament reportedly indicated that it would be prepared to consider a " mitigation of platform liability ", as requested by the Council, in certain specific cases and under certain conditions (see EUROPE 12152).
In this context, the Commission circulated, on Monday evening, 10 December, a ('non-paper') document to determine the terms and conditions of such a provision.
This text will be discussed by Member States on Wednesday 12 December at the meeting of ambassadors of the Member States to the EU (Coreper). It recalls that the parties must attempt to conclude licensing agreements or, where appropriate, cooperate in good faith and in accordance with the standards of appropriate professional diligence.
The principle of due diligence, the Commission continues, must be applied in the light of the principle of proportionality and must take into account, inter alia, the following factors: - the type, audience and size of the service; - the number and type of works; - the potential economic harm caused to the rightholder; - the availability of suitable and effective technologies and their cost for the platforms; - the number of notices received.
Platforms will escape the principle of liability when they have clearly attempted to conclude a licensing agreement with the rightholder and when they have cooperated.
The Commission also suggests introducing several safeguards to combat criticism. Thus, it stresses that "such cooperation must not result in an obstacle to the availability of works uploaded by users who do not infringe copyright" (Article 13.5). In addition, "users who act for non-commercial purposes or whose activities do not generate significant income should not be prevented from uploading and making accessible content that they have produced themselves, which includes - in whole or in part - existing protected works for the purposes of illustration, criticism, analysis, caricature, parody or pastiche".
In the Commission's view, these provisions do not prevent rightholders from claiming the withdrawal of an unauthorised work or the payment of a sum of money corresponding to the profits earned. Platforms would be liable if they do not remove content in an expeditious manner despite the request (Article 13.6). Finally, Article 13 must not lead to a monitoring obligation as provided for in the e-commerce Directive (Article 13(7)).
Agreement within reach on the ‘SatCab’ regulation
Opinions differ on the chances of an agreement on Thursday on the ‘copyright’ part. Forecasts are much more optimistic for the other part of the reform, namely the ‘satellite & cable' ('SatCab') proposal.
This text, barely comprising seven articles, aims to promote the cross-border provision of ancillary on-line services and to facilitate the cross-border digital retransmission of television and radio broadcasts (see EUROPE 11624, 12113).
A provisional technical agreement exists to transform the Regulation into a directive that is less prescriptive and applicable after 24 months.
The draft text also allows broadcasters to broadcast, throughout the EU and by only paying the fees in their home country, the following programmes: - information and news programmes; - fully self-financed own productions
Sports events will be excluded. However, the text provides that this situation should be reassessed four years after the entry into force of future rules. (Original version in French by Sophie Petitjean)