The new compromise prepared by the Romanian Presidency of the Council of the European Union regarding copyright reform provides for a mechanism to mitigate liability and refers to a set of principles for assessing the proportionality of the obligations incumbent on platforms. The text, dated Sunday 13 January, is to be discussed by the national attachés on Tuesday 15 January, with a view to a trilogue inter-institutional negotiating session six days later.
Two non-public documents have been distributed to the Member States: - a document concerning Article 13; - a 160-page document containing all the recitals of the text.
Article 13, which deals with the concept of 'liability', aims to reduce the gap between the profits that platforms derive from protected content and what creators actually receive (the value gap).
As regards the notion of liability, the compromise prepared by the Romanian Presidency of the Council reiterates the provisional agreement negotiated with the European Parliament, according to which a platform that carries out an "act of communication" by providing access to protected works must obtain the authorisation of the copyright owner (for example, by concluding a licensing agreement).
However, it includes a liability mitigation mechanism, which provides that a platform is not liable if it can demonstrate that: - it has done its best to obtain authorisation; - it has done its best to make sure the work is not made available, in accordance with the principle of professional diligence; - it has acted quickly to remove the content from the website.
The document also refers to principles of proportionality with regard to the notion of liability, such as the characteristics of the service (type, size, audience), the number and type of works downloaded by users, the resources available to the platform, and their cost.
Secondly, as far as users are concerned, the compromise text stipulates that users are allowed to download and make available any content they have generated themselves, which includes parts of existing protected works and objects for purposes of illustration, quotation, criticism, analysis, caricature, parody or pastiche (recital 38d).
On redress mechanisms, the text instructs Member States to ensure that users: - have access to out-of-court redress mechanisms for dispute resolution; - highlighted in pink, that they have access to a court or other competent judicial authority to invoke an exception or limitation to copyright rules.
For the rest, the document does not settle the question of the exclusion of small and medium-sized enterprises from the scope of the Directive. However, it suggests that software developers should be granted a derogation from Articles 14 to 16a (transparency obligation, contract adjustment mechanism and common provisions).
The meeting of Member States' ambassadors to the EU (Coreper), which will take place on 18 January, is expected to give the Romanian Presidency a renewed mandate to negotiate with the European Parliament.
See the compromise text on Article 13: http://bit.ly/2CjmOEf.
See the text including all the recitals of the legislative proposal: http://bit.ly/2QNBfFy. (Original version in French by Sophie Petitjean)