keyboard_tab Diritto d'autore 2019/0790 EN

index also:

TITLE I
GENERAL PROVISIONS

• 1 Article 1 Subject matter and scope

TITLE II
MEASURES TO ADAPT EXCEPTIONS AND LIMITATIONS TO THE DIGITAL AND CROSS-BORDER ENVIRONMENT

• 2 Article 2 Definitions

TITLE III
MEASURES TO IMPROVE LICENSING PRACTICES AND ENSURE WIDER ACCESS TO CONTENT

CHAPTER 1
Out-of-commerce works and other subject matter

• 1 Article 10 Publicity measures

CHAPTER 2
Measures to facilitate collective licensing

CHAPTER 3
Access to and availability of audiovisual works on video-on-demand platforms

CHAPTER 4
Works of visual art in the public domain

TITLE IV
MEASURES TO ACHIEVE A WELL-FUNCTIONING MARKETPLACE FOR COPYRIGHT

CHAPTER 1
Rights in publications

CHAPTER 2
Certain uses of protected content by online services

CHAPTER 3
Fair remuneration in exploitation contracts of authors and performers

• 3 Article 17 Use of protected content by online content-sharing service providers

TITLE V
FINAL PROVISIONS

cloud tag:

• shall 36
• subject 24
• works 23
• matter 23
• article 20
• public 17
• directive 16
• users 15
• states 13
• rightholders 13
• service 12
• available 12
• under 12
• which 12
• such 11
• member 11
• have 10
• //ec 10
• access 10
• information 10
• online_content-sharing_service_providers 9
• accordance 9
• providers 9
• purposes 8
• provided 8
• from 7
• means 7
• limitation 7
• rights 7
• provide 7
• scientific 7
• services 7
• paragraph 7
• referred 7
• also 7
• relevant 6
• made 6
• best 6
• uploaded 6
• exception 6
• they 6
•    member 6
• uses 6
• exceptions 6
• related 6
• content 6
• ensure 6
• covered 5
• union 5
• copyright 5

and the number of total unique words without stopwords is: 489

Article 2

Definitions

For the purposes of this Directive, the following definitions apply:

(1)

‘ research_organisation’ means a university, including its libraries, a research institute or any other entity, the primary goal of which is to conduct scientific research or to carry out educational activities involving also the conduct of scientific research: (a) on a not-for-profit basis or by reinvesting all the profits in its scientific research; or (b) pursuant to a public interest mission recognised by a Member State; in such a way that the access to the results generated by such scientific research cannot be enjoyed on a preferential basis by an undertaking that exercises a decisive influence upon such organisation;

(2)	‘ text_and_data_mining’ means any automated analytical technique aimed at analysing text and data in digital form in order to generate information which includes but is not limited to patterns, trends and correlations;

(3)	‘ cultural_heritage_institution’ means a publicly accessible library or museum, an archive or a film or audio heritage institution;

(4)

‘ press_publication’ means a collection composed mainly of literary works of a journalistic nature, but which can also include other works or other subject matter, and which: (a) constitutes an individual item within a periodical or regularly updated publication under a single title, such as a newspaper or a general or special interest magazine; (b) has the purpose of providing the general public with information related to news or other topics; and (c) is published in any media under the initiative, editorial responsibility and control of a service provider. Periodicals that are published for scientific or academic purposes, such as scientific journals, are not press_publications for the purposes of this Directive;

(5)	‘ information_society_service’ means a service within the meaning of point (b) of Article 1(1) of Directive (EU) 2015/1535;

(6)

‘ online_content-sharing_service_provider’ means a provider of an information_society_service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organises and promotes for profit-making purposes. Providers of services, such as not-for-profit online encyclopedias, not-for-profit educational and scientific repositories, open source software-developing and-sharing platforms, providers of electronic communications services as defined in Directive (EU) 2018/1972, online marketplaces, business-to-business cloud services and cloud services that allow users to upload content for their own use, are not ‘ online_content-sharing_service_providers’ within the meaning of this Directive.

Article 10

Publicity measures

Article 17

Use of protected content by online_content-sharing_service_providers

whereas

• (2) The directives that have been adopted in the area of copyright and related rights contribute to the functioning of the internal market, provide for a high level of protection for rightholders, facilitate the clearance of rights, and create a framework in which the exploitation of works and other protected subject matter can take place.

    That harmonised legal framework contributes to the proper functioning of the internal market, and stimulates innovation, creativity, investment and production of new content, also in the digital environment, in order to avoid the fragmentation of the internal market.

    The protection provided by that legal framework also contributes to the Union's objective of respecting and promoting cultural diversity, while at the same time bringing European common cultural heritage to the fore.

    Article 167(4) of the Treaty on the Functioning of the European Union requires the Union to take cultural aspects into account in its action.


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• (3) Rapid technological developments continue to transform the way works and other subject matter are created, produced, distributed and exploited.

    New business models and new actors continue to emerge.

    Relevant legislation needs to be future-proof so as not to restrict technological development.

    The objectives and the principles laid down by the Union copyright framework remain sound.

    However, legal uncertainty remains, for both rightholders and users, as regards certain uses, including cross-border uses, of works and other subject matter in the digital environment.

    As stated in the Commission Communication of 9 December 2015 entitled ‘Towards a modern, more European copyright framework’, in some areas it is necessary to adapt and supplement the existing Union copyright framework, while keeping a high level of protection of copyright and related rights. This Directive provides for rules to adapt certain exceptions and limitations to copyright and related rights to digital and cross-border environments, as well as for measures to facilitate certain licensing practices, in particular, but not only, as regards the dissemination of out-of-commerce works and other subject matter and the online availability of audiovisual works on video-on-demand platforms, with a view to ensuring wider access to content.

    It also contains rules to facilitate the use of content in the public domain.

    In order to achieve a well-functioning and fair marketplace for copyright, there should also be rules on rights in publications, on the use of works or other subject matter by online service providers storing and giving access to user-uploaded content, on the transparency of authors' and performers' contracts, on authors' and performers' remuneration, as well as a mechanism for the revocation of rights that authors and performers have transferred on an exclusive basis.


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• (8) New technologies enable the automated computational analysis of information in digital form, such as text, sounds, images or data, generally known as text_and_data_mining.

    Text and data mining makes the processing of large amounts of information with a view to gaining new knowledge and discovering new trends possible.

    Text and data mining technologies are prevalent across the digital economy; however, there is widespread acknowledgment that text_and_data_mining can, in particular, benefit the research community and, in so doing, support innovation.

    Such technologies benefit universities and other research_organisations, as well as cultural_heritage_institutions since they could also carry out research in the context of their main activities. However, in the Union, such organisations and institutions are confronted with legal uncertainty as to the extent to which they can perform text_and_data_mining of content.

    In certain instances, text_and_data_mining can involve acts protected by copyright, by the sui generis database right or by both, in particular, the reproduction of works or other subject matter, the extraction of contents from a database or both which occur for example when the data are normalised in the process of text_and_data_mining.

    Where no exception or limitation applies, an authorisation to undertake such acts is required from rightholders.


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• (9) Text and data mining can also be carried out in relation to mere facts or data that are not protected by copyright, and in such instances no authorisation is required under copyright law.

    There can also be instances of text_and_data_mining that do not involve acts of reproduction or where the reproductions made fall under the mandatory exception for temporary acts of reproduction provided for in Article 5(1) of Directive 2001/29/EC, which should continue to apply to text_and_data_mining techniques that do not involve the making of copies beyond the scope of that exception.


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• (11) The legal uncertainty concerning text_and_data_mining should be addressed by providing for a mandatory exception for universities and other research_organisations, as well as for cultural_heritage_institutions, to the exclusive right of reproduction and to the right to prevent extraction from a database.

    In line with the existing Union research policy, which encourages universities and research institutes to collaborate with the private sector, research_organisations should also benefit from such an exception when their research activities are carried out in the framework of public-private partnerships. While research_organisations and cultural_heritage_institutions should continue to be the beneficiaries of that exception, they should also be able to rely on their private partners for carrying out text_and_data_mining, including by using their technological tools.


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• (12) Research organisations across the Union encompass a wide variety of entities the primary goal of which is to conduct scientific research or to do so together with the provision of educational services. The term ‘scientific research’ within the meaning of this Directive should be understood to cover both the natural sciences and the human sciences. Due to the diversity of such entities, it is important to have a common understanding of research_organisations. They should for example cover, in addition to universities or other higher education institutions and their libraries, also entities such as research institutes and hospitals that carry out research.

    Despite different legal forms and structures, research_organisations in the Member States generally have in common that they act either on a not-for-profit basis or in the context of a public-interest mission recognised by the State.

    Such a public-interest mission could, for example, be reflected through public funding or through provisions in national laws or public contracts. Conversely, organisations upon which commercial undertakings have a decisive influence allowing such undertakings to exercise control because of structural situations, such as through their quality of shareholder or member, which could result in preferential access to the results of the research, should not be considered research_organisations for the purposes of this Directive.


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• (13) Cultural heritage institutions should be understood as covering publicly accessible libraries and museums regardless of the type of works or other subject matter that they hold in their permanent collections, as well as archives, film or audio heritage institutions. They should also be understood to include, inter alia, national libraries and national archives, and, as far as their archives and publicly accessible libraries are concerned, educational establishments, research_organisations and public sector broadcasting organisations.


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• (14) Research organisations and cultural_heritage_institutions, including the persons attached thereto, should be covered by the text_and_data_mining exception with regard to content to which they have lawful access. Lawful access should be understood as covering access to content based on an open access policy or through contractual arrangements between rightholders and research_organisations or cultural_heritage_institutions, such as subscriptions, or through other lawful means. For instance, in the case of subscriptions taken by research_organisations or cultural_heritage_institutions, the persons attached thereto and covered by those subscriptions should be deemed to have lawful access. Lawful access should also cover access to content that is freely available online.


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• (18) In addition to their significance in the context of scientific research, text_and_data_mining techniques are widely used both by private and public entities to analyse large amounts of data in different areas of life and for various purposes, including for government services, complex business decisions and the development of new applications or technologies. Rightholders should remain able to license the uses of their works or other subject matter falling outside the scope of the mandatory exception provided for in this Directive for text_and_data_mining for the purposes of scientific research and of the existing exceptions and limitations provided for in Directive 2001/29/EC.

    At the same time, consideration should be given to the fact that users of text_and_data_mining could be faced with legal uncertainty as to whether reproductions and extractions made for the purposes of text_and_data_mining can be carried out on lawfully accessed works or other subject matter, in particular when the reproductions or extractions made for the purposes of the technical process do not fulfil all the conditions of the existing exception for temporary acts of reproduction provided for in Article 5(1) of Directive 2001/29/EC.

    In order to provide for more legal certainty in such cases and to encourage innovation also in the private sector, this Directive should provide, under certain conditions, for an exception or limitation for reproductions and extractions of works or other subject matter, for the purposes of text_and_data_mining, and allow the copies made to be retained for as long as is necessary for those text_and_data_mining purposes.


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• (25) Cultural heritage institutions are engaged in the preservation of their collections for future generations. An act of preservation of a work or other subject matter in the collection of a cultural_heritage_institution might require a reproduction and consequently require the authorisation of the relevant rightholders. Digital technologies offer new ways of preserving the heritage contained in those collections but they also create new challenges. In view of those new challenges, it is necessary to adapt the existing legal framework by providing for a mandatory exception to the right of reproduction in order to allow such acts of preservation by such institutions.


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• (31) All Member States should have legal mechanisms in place allowing licences issued by relevant and sufficiently representative collective management organisations to cultural_heritage_institutions, for certain uses of out-of-commerce works or other subject matter, to also apply to the rights of rightholders that have not mandated a representative collective management organisation in that regard.

    It should be possible, pursuant to this Directive, for such licences to cover all Member States.


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• (33) Member States should, within the framework provided for in this Directive, have flexibility in choosing the specific type of licensing mechanism, such as extended collective licensing or presumptions of representation, that they put in place for the use of out-of-commerce works or other subject matter by cultural_heritage_institutions, in accordance with their legal traditions, practices or circumstances. Member States should also have flexibility in determining what the requirements for collective management organisations to be sufficiently representative are, as long as that determination is based on a significant number of rightholders in the relevant type of works or other subject matter having given a mandate allowing the licensing of the relevant type of use.

    Member States should be free to establish specific rules applicable to cases in which more than one collective management organisation is representative for the relevant works or other subject matter, requiring for example joint licences or an agreement between the relevant organisations.


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• (37) Considering the variety of works and other subject matter in the collections of cultural_heritage_institutions, it is important that the licensing mechanisms and the exception or limitation provided for by this Directive are available and can be used in practice for different types of works and other subject matter, including photographs, software, phonograms, audiovisual works and unique works of art, including where they have never been commercially available.

    Never-in-commerce works can include posters, leaflets, trench journals or amateur audiovisual works, but also unpublished works or other subject matter, without prejudice to other applicable legal constraints, such as national rules on moral rights. When a work or other subject matter is available in any of its different versions, such as subsequent editions of literary works and alternate cuts of cinematographic works, or in any of its different manifestations, such as digital and printed formats of the same work, that work or other subject matter should not be considered out of commerce.

    Conversely, the commercial availability of adaptations, including other language versions or audiovisual adaptations of a literary work, should not preclude a work or other subject matter from being deemed to be out of commerce in a given language.

    In order to reflect the specificities of different types of works and other subject matter as regards modes of publication and distribution, and to facilitate the usability of those mechanisms, specific requirements and procedures might have to be established for the practical application of those licensing mechanisms, such as a requirement for a certain time period to have elapsed since the work or other subject matter was first commercially available.

    It is appropriate that Member States consult rightholders, cultural_heritage_institutions and collective management organisations when establishing such requirements and procedures.


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• (39) For reasons of international comity, the licensing mechanism and the exception or limitation provided for in this Directive for the digitisation and dissemination of out-of-commerce works or other subject matter should not apply to sets of out-of-commerce works or other subject matter where there is evidence available to presume that they predominantly consist of works or other subject matter of third countries, unless the collective management organisation concerned is sufficiently representative for that third country, for example via a representation agreement.

    That assessment could be based on the evidence available following the making of the reasonable effort to determine whether the works or other subject matter are out of commerce, without the need to search for further evidence.

    A work-by-work assessment of the origin of out-of-commerce works or other subject matter should only be required insofar as it is also required for making the reasonable effort to determine whether they are commercially available.


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• (43) The measures provided for in this Directive to facilitate the collective licensing of rights in out-of-commerce works or other subject matter that are permanently in the collections of cultural_heritage_institutions should be without prejudice to the use of such works or other subject matter under exceptions or limitations provided for in Union law, or under other licences with an extended effect, where such licensing is not based on the out-of-commerce status of the covered works or other subject matter.

    Those measures should also be without prejudice to national mechanisms for the use of out-of-commerce works or other subject matter based on licences between collective management organisations and users other than cultural_heritage_institutions.


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• (46) Given the increasing importance of the ability to offer flexible licensing schemes in the digital age, and the increasing use of such schemes, Member States should be able to provide for licensing mechanisms which permit collective management organisations to conclude licences, on a voluntary basis, irrespective of whether all rightholders have authorised the organisation concerned to do so. Member States should have the ability to maintain and introduce such mechanisms in accordance with their national traditions, practices or circumstances, subject to the safeguards provided for in this Directive and in compliance with Union law and the international obligations of the Union.

    Such mechanisms should only have effect in the territory of the Member State concerned, unless otherwise provided for in Union law.

    Member States should have flexibility in choosing the specific type of mechanism allowing licences for works or other subject matter to extend to the rights of rightholders that have not authorised the organisation that concludes the agreement, provided that such mechanism is in compliance with Union law, including with the rules on collective management of rights provided for in Directive 2014/26/EU.

    In particular, such mechanisms should also ensure that Article 7 of Directive 2014/26/EU applies to rightholders that are not members of the organisation that concludes the agreement.

    Such mechanisms could include extended collective licensing, legal mandates and presumptions of representation.

    The provisions of this Directive concerning collective licensing should not affect the existing ability of Member States to apply mandatory collective management of rights or other collective licensing mechanisms with an extended effect, such as that included in Article 3 of Council Directive 93/83/EEC (12).


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• (49) Member States should ensure that the purpose and scope of any licence granted as a result of mechanisms of collective licensing with an extended effect, as well as the possible uses, should always be carefully and clearly defined in law or, if the underlying law is a general provision, in the licensing practices applied as a result of such general provisions, or in the licences granted.

    The ability to operate a licence under such mechanisms should also be limited to collective management organisations that are subject to national law implementing Directive 2014/26/EU.


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• (57) The rights granted to the publishers of press_publications under this Directive should have the same scope as the rights of reproduction and making available to the public provided for in Directive 2001/29/EC, insofar as online uses by information_society_service providers are concerned.

    The rights granted to publishers of press_publications should not extend to acts of hyperlinking.

    They should also not extend to mere facts reported in press_publications. The rights granted to publishers of press_publications under this Directive should also be subject to the same provisions on exceptions and limitations as those applicable to the rights provided for in Directive 2001/29/EC, including the exception in the case of quotations for purposes such as criticism or review provided for in Article 5(3)(d) of that Directive.


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• (58) The use of press_publications by information_society_service providers can consist of the use of entire publications or articles but also of parts of press_publications. Such uses of parts of press_publications have also gained economic relevance.

    At the same time, the use of individual words or very short extracts of press_publications by information_society_service providers may not undermine the investments made by publishers of press_publications in the production of content.

    Therefore, it is appropriate to provide that the use of individual words or very short extracts of press_publications should not fall within the scope of the rights provided for in this Directive.

    Taking into account the massive aggregation and use of press_publications by information_society_service providers, it is important that the exclusion of very short extracts be interpreted in such a way as not to affect the effectiveness of the rights provided for in this Directive.


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• (61) In recent years, the functioning of the online content market has gained in complexity.

    Online content-sharing services providing access to a large amount of copyright-protected content uploaded by their users have become a main source of access to content online.

    Online services are a means of providing wider access to cultural and creative works and offer great opportunities for cultural and creative industries to develop new business models. However, although they enable diversity and ease of access to content, they also generate challenges when copyright-protected content is uploaded without prior authorisation from rightholders. Legal uncertainty exists as to whether the providers of such services engage in copyright-relevant acts, and need to obtain authorisation from rightholders for content uploaded by their users who do not hold the relevant rights in the uploaded content, without prejudice to the application of exceptions and limitations provided for in Union law.

    That uncertainty affects the ability of rightholders to determine whether, and under which conditions, their works and other subject matter are used, as well as their ability to obtain appropriate remuneration for such use.

    It is therefore important to foster the development of the licensing market between rightholders and online_content-sharing_service_providers. Those licensing agreements should be fair and keep a reasonable balance between both parties. Rightholders should receive appropriate remuneration for the use of their works or other subject matter.

    However, as contractual freedom should not be affected by those provisions, rightholders should not be obliged to give an authorisation or to conclude licensing agreements.


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• (69) Where online_content-sharing_service_providers obtain authorisations, including through licensing agreements, for the use on their service of content uploaded by the users of the service, those authorisations should also cover the copyright relevant acts in respect of uploads by users within the scope of the authorisation granted to the service providers, but only in cases where those users act for non-commercial purposes, such as sharing their content without any profit-making purpose, or where the revenue generated by their uploads is not significant in relation to the copyright relevant acts of the users covered by such authorisations. Where rightholders have explicitly authorised users to upload and make available works or other subject matter on an online content-sharing service, the act of communication to the public of the service provider is authorised within the scope of the authorisation granted by the rightholder.

    However, there should be no presumption in favour of online_content-sharing_service_providers that their users have cleared all relevant rights.


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• (71) As soon as possible after the date of entry into force of this Directive, the Commission, in cooperation with Member States, should organise dialogues between stakeholders to ensure uniform application of the obligation of cooperation between online_content-sharing_service_providers and rightholders and to establish best practices with regard to the appropriate industry standards of professional diligence.

    For that purpose, the Commission should consult relevant stakeholders, including users' organisations and technology providers, and take into account developments on the market.

    Users' organisations should also have access to information on actions carried out by online_content-sharing_service_providers to manage content online.


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• (73) The remuneration of authors and performers should be appropriate and proportionate to the actual or potential economic value of the licensed or transferred rights, taking into account the author's or performer's contribution to the overall work or other subject matter and all other circumstances of the case, such as market practices or the actual exploitation of the work.

    A lump sum payment can also constitute proportionate remuneration but it should not be the rule.

    Member States should have the freedom to define specific cases for the application of lump sums, taking into account the specificities of each sector.

    Member States should be free to implement the principle of appropriate and proportionate remuneration through different existing or newly introduced mechanisms, which could include collective bargaining and other mechanisms, provided that such mechanisms are in conformity with applicable Union law.


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• (76) In order to ensure that exploitation-related information is duly provided to authors and performers also in cases where the rights have been sub-licensed to other parties who exploit the rights, this Directive entitles authors and performers to request additional relevant information on the exploitation of the rights, in cases where the first contractual counterpart has provided the information available to them, but that information is not sufficient to assess the economic value of their rights. That request should be made either directly to sub-licensees or through the contractual counterparts of authors and performers. Authors and performers, and their contractual counterparts, should be able to agree to keep the shared information confidential, but authors and performers should always be able to use the shared information for the purpose of exercising their rights under this Directive.

    Member States should have the option, in compliance with Union law, to provide for further measures to ensure transparency for authors and performers.


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• (77) When implementing the transparency obligation provided for in this Directive, Member States should take into account the specificities of different content sectors, such as those of the music sector, the audiovisual sector and the publishing sector, and all relevant stakeholders should be involved when deciding on such sector-specific obligations. Where relevant, the significance of the contribution of authors and performers to the overall work or performance should also be considered.

    Collective bargaining should be considered as an option for the relevant stakeholders to reach an agreement regarding transparency.

    Such agreements should ensure that authors and performers have the same level of transparency as or a higher level of transparency than the minimum requirements provided for in this Directive.

    To enable the adaptation of existing reporting practices to the transparency obligation, a transitional period should be provided for.

    It should not be necessary to apply the transparency obligation in respect of agreements concluded between rightholders and collective management organisations, independent management entities or other entities subject to the national rules implementing Directive 2014/26/EU, as those organisations or entities are already subject to transparency obligations under Article 18 of Directive 2014/26/EU.

    Article 18 of Directive 2014/26/EU applies to organisations that manage copyright or related rights on behalf of more than one rightholder for the collective benefit of those rightholders. However, individually negotiated agreements concluded between rightholders and those of their contractual counterparts who act in their own interest should be subject to the transparency obligation provided for in this Directive.


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• (78) Certain contracts for the exploitation of rights harmonised at Union level are of long duration, offering few opportunities for authors and performers to renegotiate them with their contractual counterparts or their successors in title in the event that the economic value of the rights turns out to be significantly higher than initially estimated.

    Accordingly, without prejudice to the law applicable to contracts in Member States, a remuneration adjustment mechanism should be provided for as regards cases where the remuneration originally agreed under a licence or a transfer of rights clearly becomes disproportionately low compared to the relevant revenues derived from the subsequent exploitation of the work or fixation of the performance by the contractual counterpart of the author or performer.

    All revenues relevant to the case in question, including, where applicable, merchandising revenues, should be taken into account for the assessment of whether the remuneration is disproportionately low.

    The assessment of the situation should take account of the specific circumstances of each case, including the contribution of the author or performer, as well as of the specificities and remuneration practices in the different content sectors, and whether the contract is based on a collective bargaining agreement.

    Representatives of authors and performers duly mandated in accordance with national law in compliance with Union law, should be able to provide assistance to one or more authors or performers in relation to requests for the adjustment of the contracts, also taking into account the interests of other authors or performers where relevant.


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