keyboard_tab Diritto d'autore 2019/0790 EN

(1) The Treaty on European Union (TEU) provides for the establishment of an internal market and the institution of a system ensuring that competition in the internal market is not distorted.

  Further harmonisation of the laws of the Member States on copyright and related rights should contribute to the achievement of those objectives.

(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.

(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.

(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.

(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.

(51) Video-on-demand services have the potential to play a decisive role in the dissemination of audiovisual works across the Union.

  However, the availability of such works, in particular European works, on video-on-demand services remains limited.

  Agreements on the online exploitation of such works can be difficult to conclude due to issues related to the licensing of rights. Such issues could, for instance, arise when the holder of the rights for a given territory has a low economic incentive to exploit a work online and does not license or holds back the online rights, which can lead to audiovisual works being unavailable on video-on-demand services. Other issues could relate to windows of exploitation.

(53) The expiry of the term of protection of a work entails the entry of that work into the public domain and the expiry of the rights that Union copyright law provides in relation to that work.

  In the field of visual arts, the circulation of faithful reproductions of works in the public domain contributes to the access to and promotion of culture, and the access to cultural heritage.

  In the digital environment, the protection of such reproductions through copyright or related rights is inconsistent with the expiry of the copyright protection of works. In addition, differences between the national copyright laws governing the protection of such reproductions give rise to legal uncertainty and affect the cross-border dissemination of works of visual arts in the public domain.

  Certain reproductions of works of visual arts in the public domain should, therefore, not be protected by copyright or related rights. All of that should not prevent cultural_heritage_institutions from selling reproductions, such as postcards.

(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.

(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.

(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.

(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.

(79) Authors and performers are often reluctant to enforce their rights against their contractual partners before a court or tribunal.

  Member States should therefore provide for an alternative dispute resolution procedure that addresses claims by authors and performers, or by their representatives on their behalf, related to obligations of transparency and the contract adjustment mechanism.

  For that purpose, Member States should be able to either establish a new body or mechanism, or rely on an existing one that fulfils the conditions established by this Directive, irrespective of whether those bodies or mechanisms are industry-led or public, including when part of the national judiciary system.

  Member States should have flexibility in deciding how the costs of the dispute resolution procedure are to be allocated.

  Such alternative dispute resolution procedure should be without prejudice to the right of parties to assert and defend their rights by bringing an action before a court.