keyboard_tab Diritto d'autore 2019/0790 EN

(15) Research organisations and cultural_heritage_institutions could in certain cases, for example for subsequent verification of scientific research results, need to retain copies made under the exception for the purposes of carrying out text_and_data_mining.

  In such cases, the copies should be stored in a secure environment.

  Member States should be free to decide, at national level and after discussions with relevant stakeholders, on further specific arrangements for retaining the copies, including the ability to appoint trusted bodies for the purpose of storing such copies. In order not to unduly restrict the application of the exception, such arrangements should be proportionate and limited to what is needed for retaining the copies in a safe manner and preventing unauthorised use.

  Uses for the purpose of scientific research, other than text_and_data_mining, such as scientific peer review and joint research, should remain covered, where applicable, by the exception or limitation provided for in Article 5(3)(a) of Directive 2001/29/EC.

(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.

(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.

(55) The organisational and financial contribution of publishers in producing press_publications needs to be recognised and further encouraged to ensure the sustainability of the publishing industry and thereby foster the availability of reliable information.

  It is therefore necessary to provide at Union level for harmonised legal protection for press_publications in respect of online uses by information_society_service providers, which leaves the existing copyright rules in Union law applicable to private or non-commercial uses of press_publications by individual users unaffected, including where such users share press_publications online.

  Such protection should be effectively guaranteed through the introduction, in Union law, of rights related to copyright for the reproduction and making available to the public of press_publications of publishers established in a Member State in respect of online uses by information_society_service providers within the meaning of Directive (EU) 2015/1535 of the European Parliament and of the Council (13).

  The legal protection for press_publications provided for by this Directive should benefit publishers that are established in a Member State and have their registered office, central administration or principal place of business within the Union.

(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.

(66) Taking into account the fact that online_content-sharing_service_providers give access to content which is not uploaded by them but by their users, it is appropriate to provide for a specific liability mechanism for the purposes of this Directive for cases in which no authorisation has been granted.

  That should be without prejudice to remedies under national law for cases other than liability for copyright infringements and to national courts or administrative authorities being able to issue injunctions in compliance with Union law.

  In particular, the specific regime applicable to new online_content-sharing_service_providers with an annual turnover below EUR 10 million, of which the average number of monthly unique visitors in the Union does not exceed 5 million, should not affect the availability of remedies under Union and national law.

  Where no authorisation has been granted to service providers, they should make their best efforts in accordance with high industry standards of professional diligence to avoid the availability on their services of unauthorised works and other subject matter, as identified by the relevant rightholders. For that purpose, rightholders should provide the service providers with relevant and necessary information taking into account, among other factors, the size of rightholders and the type of their works and other subject matter.

  The steps taken by online_content-sharing_service_providers in cooperation with rightholders should not lead to the prevention of the availability of non-infringing content, including works or other protected subject matter the use of which is covered by a licensing agreement, or an exception or limitation to copyright and related rights. Steps taken by such service providers should, therefore, not affect users who are using the online content-sharing services in order to lawfully upload and access information on such services.

(67) Similar to Article 16(2) of Directive 2014/26/EU, this Directive provides for rules as regards new online services. The rules provided for in this Directive are intended to take into account the specific case of start-up companies working with user uploads to develop new business models. The specific regime applicable to new service providers with a small turnover and audience should benefit genuinely new businesses, and should therefore cease to apply three years after their services first became available online in the Union.

  That regime should not be abused by arrangements aimed at extending its benefits beyond the first three years. In particular, it should not apply to newly created services or to services provided under a new name but which pursue the activity of an already existing online_content-sharing_service_provider which could not benefit or no longer benefits from that regime.

(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.

(75) As authors and performers tend to be in the weaker contractual position when they grant licences or transfer their rights, they need information to assess the continued economic value of their rights, compared to the remuneration received for their licence or transfer, but they often face a lack of transparency.

  Therefore, the sharing of adequate and accurate information by their contractual counterparts or their successors in title is important for the transparency and balance in the system governing the remuneration of authors and performers. That information should be up-to-date to allow access to recent data, relevant to the exploitation of the work or performance, and comprehensive in a way that it covers all sources of revenues relevant to the case, including, where applicable, merchandising revenues. As long as exploitation is ongoing, contractual counterparts of authors and performers should provide information available to them on all modes of exploitation and on all relevant revenues worldwide with a regularity that is appropriate in the relevant sector, but at least annually.

  The information should be provided in a manner that is comprehensible to the author or performer and it should allow the effective assessment of the economic value of the rights in question.

  The transparency obligation should nevertheless apply only where copyright relevant rights are concerned.

  The processing of personal data, such as contact details and information on remuneration, that are necessary to keep authors and performers informed in relation to the exploitation of their works and performances, should be carried out in accordance with Article 6(1)(c) of Regulation (EU) 2016/679.

(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.

(81) The provisions regarding transparency, contract adjustment mechanisms and alternative dispute resolution procedures laid down in this Directive should be of a mandatory nature, and parties should not be able to derogate from those provisions, whether in contracts between authors, performers and their contractual counterparts, or in agreements between those counterparts and third parties, such as non-disclosure agreements.

  As a consequence, Article 3(4) of Regulation (EC) No 593/2008 of the European Parliament and of the Council (17) should apply to the effect that, where all other elements relevant to the situation at the time of the choice of applicable law are located in one or more Member States, the parties' choice of applicable law other than that of a Member State does not prejudice the application of the provisions regarding transparency, contract adjustment mechanisms and alternative dispute resolution procedures laid down in this Directive, as implemented in the Member State of the forum.