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 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

• 1 Article 7 Common provisions

CHAPTER 2
Measures to facilitate collective licensing

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

• 4 Article 12 Collective licensing with an extended effect

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

• 1 Article 22 Right of revocation

TITLE V
FINAL provisions

• 1 Article 23 Common provisions
• 1 Article 25 Relationship with exceptions and limitations provided for in other directives
• 3 Article 29 Transposition

• shall 28
• article 28
• subject 21
• states 20
• matter 17
• directive 16
• works 16
• licensing 15
• rightholders 14
• member 14
• provisions 13
• paragraph 13
• provided 12
• mechanism 11
• rights 11
• such 10
• apply 10
•    member 10
• provide 10
• //ec 9
• licence 9
• organisation 8
• collective 8
• author 8
• about 7
• revocation 7
• performer 7
• national 7
• referred 6
• educational 6
• ensure 6
• exceptions 6
• from 6
• including 6
• accordance 6
• limitations 5
• authors 5
• state 5
• articles 5
• commission 5
• management 5
• only 5
• licences 5
• pursuant 4
• appropriate 4
• measures 4
• performers 4
• within 4
• under 4
• types 4

Member States may adopt or maintain in force broader provisions, compatible with the exceptions and limitations provided for in Directives 96/9/EC and 2001/29/EC, for uses or fields covered by the exceptions or limitations provided for in this Directive.

• (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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• (32) The provisions on collective licensing of out-of-commerce works or other subject matter introduced by this Directive might not provide a solution for all cases in which cultural_heritage_institutions encounter difficulties in obtaining all the necessary authorisations from rightholders for the use of such out-of-commerce works or other subject matter.

    That could be the case for example, where there is no practice of collective management of rights for a certain type of work or other subject matter or where the relevant collective management organisation is not sufficiently representative for the category of the rightholders and of the rights concerned.

    In such particular instances, it should be possible for cultural_heritage_institutions to make out-of-commerce works or other subject matter that are permanently in their collection available online in all Member States under a harmonised exception or limitation to copyright and related rights. It is important that uses under such exception or limitation only take place when certain conditions, in particular as regards the availability of licensing solutions, are fulfilled.

    A lack of agreement on the conditions of the licence should not be interpreted as a lack of availability of licensing solutions.


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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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• (50) Given the different traditions and experiences in relation to mechanisms of collective licensing with an extended effect across Member States, and their applicability to rightholders irrespective of their nationality or their Member State of residence, it is important to ensure that there is transparency and dialogue at Union level about the practical functioning of such mechanisms, including as regards the effectiveness of safeguards for rightholders, the usability of such mechanisms, their effect on rightholders who are not members of the collective management organisation, or on rightholders who are nationals of, or resident in, another Member State, and the impact on the cross-border provision of services, including the potential need to lay down rules to give such mechanisms cross-border effect within the internal market.

    To ensure transparency, information about the use of such mechanisms under this Directive should be regularly published by the Commission.

    Member States that have introduced such mechanisms should, therefore, inform the Commission about relevant national provisions and their application in practice, including the scope and types of licensing introduced on the basis of general provisions, the scale of licensing and the collective management organisations involved.

    Such information should be discussed with Member States in the contact committee established in Article 12(3) of Directive 2001/29/EC.

    The Commission should publish a report on the use of such mechanisms in the Union and their impact on licensing and rightholders, on the dissemination of cultural content and on the cross-border provision of services in the area of collective management of copyright and related rights, as well as on the impact on competition.


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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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• (60) Publishers, including those of press_publications, books or scientific publications and music publications, often operate on the basis of the transfer of authors' rights by means of contractual agreements or statutory provisions. In that context, publishers make an investment with a view to the exploitation of the works contained in their publications and can in some instances be deprived of revenues where such works are used under exceptions or limitations such as those for private copying and reprography, including the corresponding existing national schemes for reprography in the Member States, or under public lending schemes. In several Member States, compensation for uses under those exceptions or limitations is shared between authors and publishers. In order to take account of this situation and to improve legal certainty for all parties concerned, this Directive allows Member States that have existing schemes for the sharing of compensation between authors and publishers to maintain them.

    That is particularly important for Member States that had such compensation-sharing mechanisms before 12 November 2015, although in other Member States compensation is not shared and is due solely to authors in accordance with national cultural policies. While this Directive should apply in a non-discriminatory way to all Member States, it should respect the traditions in this area and not oblige Member States that do not currently have such compensation-sharing schemes to introduce them.

    It should not affect existing or future arrangements in Member States regarding remuneration in the context of public lending.


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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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• (68) Online content-sharing service providers should be transparent with rightholders with regard to the steps taken in the context of cooperation.

    As various actions could be undertaken by online_content-sharing_service_providers, they should provide rightholders, at the request of rightholders, with adequate information on the type of actions undertaken and the way in which they are undertaken.

    Such information should be sufficiently specific to provide enough transparency to rightholders, without affecting business secrets of online_content-sharing_service_providers. Service providers should, however, not be required to provide rightholders with detailed and individualised information for each work or other subject matter identified.

    That should be without prejudice to contractual arrangements, which could contain more specific provisions on the information to be provided where agreements are concluded between service providers and rightholders.


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• (80) When authors and performers license or transfer their rights, they expect their work or performance to be exploited.

    However, it could be the case that works or performances that have been licensed or transferred are not exploited at all.

    Where those rights have been transferred on an exclusive basis, authors and performers cannot turn to another partner to exploit their works or performances.

    In such a case, and after a reasonable period of time has elapsed, authors and performers should be able to benefit from a mechanism for the revocation of rights allowing them to transfer or license their rights to another person.

    As exploitation of works or performances can vary depending on the sectors, specific provisions could be laid down at national level in order to take into account the specificities of the sectors, such as the audiovisual sector, or of the works or performances, in particular providing for time frames for the right of revocation.

    In order to protect the legitimate interests of licensees and transferees of rights and to prevent abuses, and taking into account that a certain amount of time is needed before a work or performance is actually exploited, authors and performers should be able to exercise the right of revocation in accordance with certain procedural requirements and only after a certain period of time following the conclusion of the licence or of the transfer agreement.

    Member States should be allowed to regulate the exercise of the right of revocation in the case of works or performances involving more than one author or performer, taking into account the relative importance of the individual contributions.


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• (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.


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