keyboard_tab Diritto d'autore 2019/0790 EN

TITLE I
GENERAL PROVISIONS

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

• 1 Article 3 Text and data mining for the purposes of scientific research
• 1 Article 4 Exception or limitation for text and data mining
• 1 Article 5 Use of works and other subject matter in digital and cross-border teaching activities

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

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

• 2 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

• 2 Article 12 Collective licensing with an extended effect

CHAPTER 4
Works of visual art in the public domain

• 1 Article 13 Negotiation mechanism

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

CHAPTER 1
Rights in publications

• 1 Article 15 Protection of press publications concerning online uses

CHAPTER 2
Certain uses of protected content by online services

CHAPTER 3
Fair remuneration in exploitation contracts of authors and performers

• 2 Article 18 Principle of appropriate and proportionate remuneration
• 1 Article 20 Contract adjustment mechanism
• 1 Article 22 Right of revocation

TITLE V
FINAL PROVISIONS

• 1 Article 30 Review

• shall 56
• article 55
• subject 35
• works 32
• matter 30
• states 29
• paragraph 28
• rights 27
• provided 23
• rightholders 22
• directive 22
• member 21
•    member 17
• provide 16
• apply 15
• licensing 15
• appropriate 14
• licence 14
• mechanism 14
• referred 13
• from 13
• such 13
• available 12
• accordance 12
• collective 11
• //ec 11
• measures 10
• exception 10
• under 9
• ensure 9
• limitation 9
• state 9
• information 8
• including 8
• national 8
• about 8
• organisation 8
• purposes 8
• author 8
• have 8
• authors 8
• commission 8
• which 8
• performer 7
• first 7
• established 7
• revocation 7
• exploitation 7
• management 7
• press_publication 7

Member States shall ensure that parties facing difficulties related to the licensing of rights when seeking to conclude an agreement for the purpose of making available audiovisual works on video-on-demand services may rely on the assistance of an impartial body or of mediators. The impartial body established or designated by a Member State for the purpose of this Article and mediators shall provide assistance to the parties with their negotiations and help the parties reach agreements, including, where appropriate, by submitting proposals to them.

Member States shall notify the Commission of the body or mediators referred to in the first paragraph no later than 7 June 2021. Where Member States have chosen to rely on mediation, the notification to the Commission shall at least include, when available, the source where relevant information on the mediators entrusted can be found.

• (7) The protection of technological measures established in Directive 2001/29/EC remains essential to ensure the protection and the effective exercise of the rights granted to authors and to other rightholders under Union law.

    Such protection should be maintained while ensuring that the use of technological measures does not prevent the enjoyment of the exceptions and limitations provided for in this Directive.

    Rightholders should have the opportunity to ensure that through voluntary measures. They should remain free to choose the appropriate means of enabling the beneficiaries of the exceptions and limitations provided for in this Directive to benefit from them.

    In the absence of voluntary measures, Member States should take appropriate measures in accordance with the first subparagraph of Article 6(4) of Directive 2001/29/EC, including where works and other subject matter are made available to the public through on-demand services.


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• (22) The use of works or other subject matter under the exception or limitation for the sole purpose of illustration for teaching provided for in this Directive should only take place in the context of teaching and learning activities carried out under the responsibility of educational establishments, including during examinations or teaching activities that take place outside the premises of educational establishments, for example in a museum, library or another cultural_heritage_institution, and should be limited to what is necessary for the purpose of such activities. The exception or limitation should cover both uses of works or other subject matter made in the classroom or in other venues through digital means, for example electronic whiteboards or digital devices which might be connected to the internet, as well as uses made at a distance through secure electronic environments, such as in the context of online courses or access to teaching material complementing a given course.

    Secure electronic environments should be understood as digital teaching and learning environments access to which is limited to an educational establishment's teaching staff and to pupils or students enrolled in a study programme, in particular through appropriate authentication procedures including password-based authentication.


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• (27) Member States should, therefore, be required to provide for an exception to permit cultural_heritage_institutions to reproduce works and other subject matter permanently in their collections for preservation purposes, for example to address technological obsolescence or the degradation of original supports or to insure such works and other subject matter.

    Such an exception should allow the making of copies by the appropriate preservation tool, means or technology, in any format or medium, in the required number, at any point in the life of a work or other subject matter and to the extent required for preservation purposes. Acts of reproduction undertaken by cultural_heritage_institutions for purposes other than the preservation of works and other subject matter in their permanent collections should remain subject to the authorisation of rightholders, unless permitted by other exceptions or limitations provided for in Union law.


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• (35) appropriate safeguards should be available for all rightholders, who should be given the opportunity of excluding the application of the licensing mechanisms and of the exception or limitation, introduced by this Directive for the use of out-of-commerce works or other subject matter, in relation to all their works or other subject matter, in relation to all licences or all uses under the exception or limitation, in relation to particular works or other subject matter, or in relation to particular licences or uses under the exception or limitation, at any time before or during the term of the licence or before or during the use under the exception or limitation.

    Conditions governing those licensing mechanisms should not affect their practical relevance for cultural_heritage_institutions. It is important that, where a rightholder excludes the application of such mechanisms or of such exception or limitation to one or more works or other subject matter, any ongoing uses are terminated within a reasonable period, and, where they take place under a collective licence, that the collective management organisation once informed ceases to issue licences covering the uses concerned.

    Such exclusion by rightholders should not affect their claims to remuneration for the actual use of the work or other subject matter under the licence.


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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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• (41) Information regarding the ongoing and future use of out-of-commerce works and other subject matter by cultural_heritage_institutions on the basis of this Directive and the arrangements in place for all rightholders to exclude the application of licences or of the exception or limitation to their works or other subject matter should be adequately publicised both before and during the use under a licence or under the exception or limitation, as appropriate.

    Such publicising is particularly important when uses take place across borders in the internal market.

    It is therefore appropriate to provide for the creation of a single publicly accessible online portal for the Union in order to make such information available to the public for a reasonable period of time before the use takes place.

    Such portal should make it easier for rightholders to exclude the application of licences or of the exception or limitation to their works or other subject matter.

    Under Regulation (EU) No 386/2012 of the European Parliament and of the Council (11), the European Union Intellectual Property Office is entrusted with certain tasks and activities, financed by making use of its own budgetary means and aimed at facilitating and supporting the activities of national authorities, the private sector and Union institutions in the fight against, including the prevention of, infringement of intellectual property rights. It is therefore appropriate to rely on that Office to establish and manage the portal making such information available.


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• (48) Member States should ensure that appropriate safeguards are in place to protect the legitimate interests of rightholders that have not mandated the organisation offering the licence and that those safeguards apply in a non-discriminatory manner.

    Specifically, in order to justify the extended effect of the mechanisms, such an organisation should be, on the basis of authorisations from rightholders, sufficiently representative of the types of works or other subject matter and of the rights which are the subject of the licence.

    Member States should determine the requirements to be satisfied for those organisations to be considered sufficiently representative, taking into account the category of rights managed by the organisation, the ability of the organisation to manage the rights effectively, the creative sector in which it operates, and whether the organisation covers a significant number of rightholders in the relevant type of works or other subject matter who have given a mandate allowing the licensing of the relevant type of use, in accordance with Directive 2014/26/EU.

    To provide legal certainty and ensure that there is confidence in the mechanisms, Member States should be allowed to decide who is to have legal responsibility as regards uses authorised by the licence agreement.

    Equal treatment should be guaranteed to all rightholders whose works are exploited under the licence, including in particular as regards access to information on the licensing and the distribution of remuneration.

    Publicity measures should be effective throughout the duration of the licence and should not involve imposing a disproportionate administrative burden on users, collective management organisations or rightholders, and without the need to inform each rightholder individually.


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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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• (59) The protection granted to publishers of press_publications under this Directive should not affect the rights of the authors and other rightholders in the works and other subject matter incorporated therein, including as regards the extent to which authors and other rightholders can exploit their works or other subject matter independently from the press_publication in which they are incorporated.

    Publishers of press_publications should, therefore, not be able to invoke the protection granted to them under this Directive against authors and other rightholders or against other authorised users of the same works or other subject matter.

    That should be without prejudice to contractual arrangements concluded between the publishers of press_publications, on the one hand, and authors and other rightholders, on the other.

    Authors whose works are incorporated in a press_publication should be entitled to an appropriate share of the revenues that press publishers receive for the use of their press_publications by information_society_service providers. That should be without prejudice to national laws on ownership or exercise of rights in the context of employment contracts, provided that such laws are in compliance with Union law.


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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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• (64) It is appropriate to clarify in this Directive that online_content-sharing_service_providers perform an act of communication to the public or of making available to the public when they give the public access to copyright-protected works or other protected subject matter uploaded by their users. Consequently, online_content-sharing_service_providers should obtain an authorisation, including via a licensing agreement, from the relevant rightholders. This does not affect the concept of communication to the public or of making available to the public elsewhere under Union law, nor does it affect the possible application of Article 3(1) and (2) of Directive 2001/29/EC to other service providers using copyright-protected content.


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• (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.


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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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• (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.


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