Discussions between France and Germany have resulted in a new compromise text on copyright reform in the EU, which was submitted by the Romanian Presidency of the Council during the night of 4 to 5 February.
Bucharest hopes to secure enough support from national ambassadors on Friday 8 February to organise a trilogue with Parliament on the following Monday or Tuesday (11 or 12 February). This could (or should, given the proximity of elections) be the last word on this text, which was introduced in 2016 to create a more balanced relationship between platforms and creators.
SMEs: audience and turnover
The most significant new point in this text involves the derogation that could be granted to small and medium-sized enterprises (SMEs). Whereas the Romanian Presidency proposed in January that SMEs be excluded from the scope of application of the directive, this time it is proposing a streamlined liability regime for start-ups.
It should be remembered that article 13 stipulates that platforms must enter into licensing agreements with rights holders or agree to filter content. According to the Franco-German text, platforms which are not able to enter into a licensing agreement in their first three years of business should only be subject to a "notification and withdrawal" obligation (article 13(4aa)).
If, on the other hand, they reach an average audience of more than five million visitors per month, they will still need to demonstrate that they have done their utmost to prevent new batches of works reappearing on their websites when the rights holders have provided notification containing sufficient information.
The compromise text provides for a revision clause for this provision “three years after the end of the transposition period” set by Parliament at one year and by the Council at two years (article 22(1a)).
Limitation of liability
The new text also re-visits the idea of limiting liability for platforms that meet three "cumulative" conditions, i.e.: (1) they have done their utmost to try to obtain permission from rights holders; (2) they have done their utmost, in accordance with applicable standards of professional diligence, to ensure that works where the rights holders have provided the platforms with the necessary and relevant information are unavailable; (3) they have acted promptly to remove protected works from their website and to prevent them from reappearing there. In addition, the following proportionality criteria will have to be taken into account: (1) the type, audience and size of the service; (2) the number and type of works; (3) the availability of appropriate and effective methods and the cost to the supplier.
It should also be noted that the new text reduces the range of exceptions to copyright rules for user-generated content: it removes the exception for illustrative purposes and limits exceptions to criticism, reporting, caricature, parody and pastiche (article 13(5)).
Related rights, remuneration and exceptions
The rest of the new 12-page compromise retains the main points from the previous negotiating mandate. With regard to the new related right for newspaper publishers, the text specifies that “authors whose works are included in a newspaper publication should be entitled to an appropriate share of the income received by newspaper publishers”, unless national provisions stipulate otherwise on the subject of ownership rights in employment contracts. Article 14 is now based on a right to “appropriate and proportionate” remuneration. Finally, the Bulgarian Presidency stated that article 16a on the right to cancel may be retained as a bargaining chip with Parliament and that it will not put up a fight to defend a mandatory exception for text and data searches. (Original version in French by Sophie Petitjean)