Negotiations between the EU Council and the European Parliament on copyright reform were mainly hampered by the issue of the rights of newspaper publishers (Article 11) and the value gap (Article 13) on Thursday 13 December (see EUROPE 12159). No further meetings are expected in December and it will therefore be necessary to wait until January (and the Romanian Presidency of the Council) to potentially complete this dossier.
However, the 13 December meeting was announced as final, as the co-legislators were convinced that they would reach a compromise on this text, which introduces new exceptions to copyright rules and sets out new provisions to ensure better protection for protected works. However, despite a day of discussion, this was not possible.
The achievements of 13 December
According to our information, the co-legislators would still have been able to agree on the issue of exceptions. Parliament would have given in on the accumulation of exceptions (Article 6(1)): the negotiating mandate given to Axel Voss (EPP, Germany) in September suggested that the right of access to content through a derogation provided for in the text under consideration should not confer a right of use under another exception. In exchange, he would have obtained an exception for works in the public domain. A new Article 5a would provide a reproduction right for visual works that fall into the public domain, unless the work is reproduced in the form of a postcard by museums. The co-legislators would also have closed the issue of works that are not commercially available, including on Article 9a, which specifies that, when an organisation represents the majority of authors in a field, it is presumed to also represent artists who have not formally mandated this organisation.
Articles 11 and 13 still open
However, the real issues of this reform are still open. The co-legislators still have not decided whether and how the snippets should be covered by the future neighbouring right for newspaper publishers. According to one source, Parliament could perhaps consider a term of protection of one year, as long as the Council could accept that authors could also benefit from this new right.
Nor would provisions to address the value gap - i.e. the gap between the profits that platforms derive from protected content and what creators actually collect (Article 13) - be established. This issue was finally discussed in trilogue, despite the absence of prior discussions between Parliament's shadow rapporteurs. At this stage, the Commission's proposal on liability mitigation measures would still serve as the basis for the work.
During the trilogue, the Austrian Presidency reportedly indicated that the Council could accept Parliament's requests for the introduction of an appropriate remuneration right and a revocation mechanism in the event of failure to exploit the work, provided that it wins its case on Articles 11 and 13.
The Austrian Presidency will report back to the Member States on the negotiation meeting on 19 December. It therefore seems very difficult to consider an agreement in December under the Austrian Presidency, given the end-of-year holidays. It will therefore most certainly be up to the Romanian Presidency of the Council to complete these negotiations. (Original version in French by Sophie Petitjean)