Brussels, 16 February 2019
Interinstitutional files:
2016/0280(COD)WK 2300/2019 INIT
LIMITEAUDIOCOMPET
CULT
EDUC
PI
RECH
TELECOM

WORKING PAPER
This is a paper intended for a specific community of recipients. Handling andfurther distribution are under the sole responsibility of community members.

NOTE
From:
To:

General Secretariat of the Council
Delegations

N° prev. doc.:
N° Cion doc.:

5893/19 + ADD 1
12254/16

Subject:

Proposal for a Directive of the European Parliament and of the Council on
Copyright in the Digital Single Market- 4-column table after trilogue of 11, 12 and 13 February 2019

Delegations will find attached the 4-column table on the above proposal setting out in the 4th column
the compromise text as it results from the Political Agreement reached with the EP at the trilogue
on 13 February 2019.
Changes compared to text set out in the 4th column in ADD 1 of document 5893/19 are in rows 14, 26,
28, 45a, 66a, 69, 72, 73, 82, 83, 85,87, 90, 125, 135, 136, 148, 151, 156, new 214 A+B, 225, 226, 237A,
254-259, 261-263, 282, 283, 285-288, 316 and are highlighted in BLUE. In this version of the 4-column
table, the comments that were relating to the stage of the negotiations (such as "provisionally agreed at
technical meeting/trilogue on ...") were deleted.
WK 2300/2019 INIT

LIMITEENRow

on copyright in the Digital Single Market
COM (2016) 593 final - 2016/0280 (COD)

COUNCIL TEXTPART 1: CITATIONS AND RECITALSEP TEXTANNEX I

DIRECTIVE OF THE
EUROPEAN PARLIAMENTAND OF THE COUNCIL

Proposal for aon copyright in the Digital Single
MarketDIRECTIVE OF THE
EUROPEAN PARLIAMENTAND OF THE COUNCIL

Proposal for a(Text with EEA relevance)

on copyright in the Digital
Single Market

DIRECTIVE OF THE
EUROPEAN PARLIAMENTAND OF THE COUNCIL

Proposal for a

THE EUROPEANPARLIAMENT AND THE
COUNCIL OF THE
EUROPEAN UNION,(Text with EEA relevance)

on copyright in the Digital
Single Market

DIRECTIVE OF THE
EUROPEAN PARLIAMENTAND OF THE COUNCIL

Proposal for a

9134/18

on copyright in the Digital
Single Market(Text with EEA relevance)

THE EUROPEANPARLIAMENT AND THE
COUNCIL OF THE
EUROPEAN UNION,POSSIBLE COMPROMISESOLUTION

Proposal for a directive of the European Parliament and of the Council

COMMISSION PROPOSAL

P8_TA-PROV(2018)0337(Text with EEA relevance)

THE EUROPEANPARLIAMENT AND THE
COUNCIL OF THE EUROPEAN
UNION,

Having regard to the Treaty on
the Functioning of the European

A8-0245/2018

THE EUROPEANPARLIAMENT AND THE
COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty on the Having regard to the Treaty on
Functioning of the European
the Functioning of theCOM(2016)593

2.

Having regard to the Treaty on
the Functioning of the

1.

3.

1

9.

8.

7.

6.

5.

4.

Whereas:Acting in accordance with theordinary legislative procedure,

Having regard to the opinion of Having regard to the opinion of
the European Economic andthe European Economic andSocial Committee1,
Social Committee1,

Having regard to the proposal
from the European
Commission,

Acting in accordance with theordinary legislative procedure,

Having regard to the opinion of Having regard to the opinion of
the Committee of the Regions2, the Committee of the Regions2,

After transmission of the draft
legislative act to the national
parliaments,

Whereas:After transmission of the draft
legislative act to the national
parliaments,

Having regard to the proposal
from the European Commission,

Union, and in particular
Article 114 thereof,(1)
The Treaty provides forthe establishment of an internalmarket and the institution of asystem ensuring thatcompetition in the internal

Whereas:Acting in accordance with theordinary legislative procedure,

European Union, and inparticular
Article Articles 53(1), 62 and114 thereof

Acting in accordance with theordinary legislative procedure,

Having regard to the opinion of Having regard to the opinion of
the European Economic andthe European Economic andSocial Committee1,
Social Committee1,

Having regard to the proposal
from the European
Commission,

Whereas:Having regard to the opinion of Having regard to the opinion of
the Committee of the Regions2, the Committee of the Regions2,

After transmission of the draft
legislative act to the national
parliaments,(1)
The Treaty provides forthe establishment of an internalmarket and the institution of asystem ensuring that competitionin the internal market is not

After transmission of the draft
legislative act to the national
parliaments,

Having regard to the proposal
from the European Commission,

Union, and inparticularArticle Articles 53(1),62 and 114 thereof,

European Union, and inparticular Article 114 thereof,

10.

(1)
The Treaty provides forthe establishment of an internalmarket and the institution of asystem ensuring that competitionin the internal market is not

OJ C , , p. .
OJ C , , p. .

(1)
The Treaty provides forthe establishment of an internalmarket and the institution of asystem ensuring thatcompetition in the internal

1
2

2

11.

market is not distorted.
Harmonisation of the laws of
the Member States on
copyright and related rights
should contribute further to theachievement of thoseobjectives.
(2)
The directives whichhave been adopted in the areaof copyright and related rights
provide for a high level ofprotection for rightholders andcreate a framework wherein
the exploitation of works andother protected subject-matter
can take place. This
harmonised legal frameworkcontributes to the goodfunctioning of the internalmarket; it stimulates
innovation, creativity,
investment and production of
new content, also in the digital
environment. The protection
provided by this legal
framework also contributes tothe Union's objective ofrespecting and promoting
cultural diversity while at thesame time bringing theEuropean common cultural(2) The directives which havebeen adopted in the area of
copyright and related rights
contribute to the functioning of
the internal market, provide for ahigh level of protection forrightholders, facilitate theclearance of rights and create aframework wherein the
exploitation of works and otherprotected subject-matter can takeplace. This harmonised legal
framework contributes to the goodfunctioning of the a truly
integrated internal market; itstimulates innovation, creativity,
investment and production of newcontent, also in the digital
environment, with a view to
avoiding fragmentation of theinternal market. The protection
provided by this legal framework
also contributes to the Union's
objective of respecting anddistorted. Harmonisation of thelaws of the Member States on
copyright and related rights
should contribute further to theachievement of those objectives.

(2)
The
directivesDirectives whichhave been adopted in the areaof copyright and related rights
provide for a high level ofprotection for rightholders andcreate a framework wherein the
exploitation of works and otherprotected subject-matter cantake place. This harmonised
legal framework contributes to
the good functioning of theinternal market; it stimulates
innovation, creativity,
investment and production of
new content, also in the digital
environment. The protection
provided by this legal
framework also contributes tothe Union's objective ofrespecting and promoting
cultural diversity while at thesame time bringing theEuropean common cultural

market is not distorted.
Harmonisation of the laws of
the Member States on
copyright and related rights
should contribute further to theachievement of thoseobjectives.

(2)
The directives whichhave been adopted in the area of
copyright and related rights
contribute to the functioning of
the internal market, provide fora high level of protection forrightholders, facilitate theclearance of rights and create aframework wherein the
exploitation of works and otherprotected subject-matter can takeplace. This harmonised legal
framework contributes to thegood functioning of the internalmarket; it stimulates innovation,
creativity, investment andproduction of new content, also
in the digital environment, with aview to avoiding fragmentationof the internal market. The
protection provided by this legal
framework also contributes tothe Union's objective ofrespecting and promoting

distorted. Harmonisation of thelaws of the Member States on
copyright and related rights
should contribute further to theachievement of those objectives.

3

12.

(3)
Rapid technologicaldevelopments continue totransform the way works andother subject-matter are
created, produced, distributedand exploited. New businessmodels and new actors
continue to emerge. The
objectives and the principles
laid down by the Union
copyright framework remainsound. However, legal
uncertainty remains, for bothrightholders and users, asregards certain uses, including
cross-border uses, of works
and other subject-matter in thedigital environment. As set out
in the Communication of theCommission entitled ‘Towards
a modern, more European
copyright framework’3, insome areas it is necessary to

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

(3) Rapid technologicaldevelopments continue totransform the way works andother subject-matter are created,
produced, distributed andexploited, and relevant
legislation needs to be future
proof so as not to restrict
technological development. New
business models and new actors
continue to emerge. The
objectives and the principles laid
down by the Union copyrightframework remain sound.
However, legal uncertainty
remains, for both rightholders andusers, as regards certain uses,
including cross-border uses, ofworks and other subject-matter inthe digital environment. As set out
in the Communication of theCommission entitled 'Towards amodern, more European copyrightpromoting cultural diversity whileat the same time bringing theEuropean common cultural
heritage to the fore. Article 167(4)of the Treaty on the Functioningof the European Union requires
the Union to take cultural aspects
into account in its action.

4(3)
Rapid technologicaldevelopments continue totransform the way works andother subject-matter are
created, produced, distributedand exploited. New businessmodels and new actors
continue to emerge. The
objectives and the principles
laid down by the Union
copyright framework remainsound. However, legal
uncertainty remains, for bothrightholders and users, asregards certain uses, including
cross-border uses, of works
and other subject-matter in thedigital environment. As set out
in the Communication of theCommission entitled ‘Towards
a modern, more European
copyright framework’3, insome areas it is necessary to

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

(3) Rapid technologicaldevelopments continue totransform the way works andother subject-matter are created,
produced, distributed andexploited. New business models
and new actors continue toemerge. Relevant legislationneeds to be future proof so as
not to restrict technologicaldevelopment. The objectives andthe principles laid down by theUnion copyright framework
remain sound. However, legal
uncertainty remains, for bothrightholders and users, as regards
certain uses, including crossborder uses, of works and othersubject-matter in the digital
environment. As set out in theCommunication of theCommission entitled 'Towards amodern, more European

cultural diversity while at thesame time bringing the European
common cultural heritage to thefore. Article 167(4) of the Treaty
on the Functioning of theEuropean Union requires theUnion to take cultural aspects
into account in its action.

3

adapt and supplement thecurrent Union copyrightframework. This Directive
provides for rules to adapt
certain exceptions andlimitations to digital and crossborder environments, as wellas measures to facilitate certain
licensing practices as regards
the dissemination of out-ofcommerce works and theonline availability ofaudiovisual works on videoon-demand platforms with aview to ensuring wider accessto content. In order to achievea well-functioning marketplace
for copyright, there should also
be rules on rights inpublications, on the use ofworks and other subject-matterby online service providers
storing and giving access touser uploaded content and on
the transparency of authors'and performers' contracts.

COM(2015) 626 final.

framework'3, in some areas it isnecessary to adapt andsupplement the current Union
copyright framework. This
Directive provides for rules toadapt certain exceptions andlimitations to digital and crossborder environments, as well as
measures to facilitate certain
licensing practices as regards thedissemination of out-of-commerce
works and the online availabilityof audiovisual works on video-ondemand platforms with a view toensuring wider access to content.
In order to achieve a wellfunctioning and fair marketplace
for copyright, there should also berules on rights in publications, on
the exercise and enforcement of
the use of works and othersubject-matter by on online
service providers storing andgiving access to user uploaded
content providers’ platforms andon the transparency of authors'and performers' contracts and of
the accounting linked with the
exploitation of protected works inaccordance with those contracts.

5

adapt and supplement thecurrent Union copyrightframework. keeping a highlevel of protection of
copyright and related rights.
This Directive provides forrules to adapt certain
exceptions and limitations todigital and cross-borderenvironments, as well as
measures to facilitate certain
licensing practices as regards
the dissemination of out-ofcommerce works and theonline availability ofaudiovisual works on videoon-demand platforms with aview to ensuring wider accessto content. In order to achievea well-functioning marketplace
for copyright, there should also
be rules on rights inpublications, on the use ofworks and other subject-matterby online service providers
storing and giving access touser uploaded content and on
the transparency of authors'and performers' contracts.

copyright framework'3, in someareas it is necessary to adapt andsupplement the current Union
copyright framework keeping ahigh level of protection of
copyright and related rights.
This Directive provides for rules
to adapt certain exceptions andlimitations to digital and crossborder environments, as well as
measures to facilitate certain
licensing practices notably but
not only as regards thedissemination of out-ofcommerce works 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 theuse of content in the publicdomain. In order to achieve awell-functioning and fairmarketplace for copyright, there
should also be rules on rights inpublications, on the use of works
and other subject-matter by
online service providers storing
and giving access to user
uploaded content, on the

13.

4

5
6

7

(4)
This Directive is based
upon, and complements, therules laid down in the
Directives currently in force inthis area, in particular
Directive 96/9/EC of theEuropean Parliament and of
the Council4, Directive
2001/29/EC of the European
Parliament and of the Council6,
Directive 2006/115/EC of theEuropean Parliament and of
the Council7, Directive
2009/24/EC of the European(4) This Directive is based upon,and complements, the rules laid
down in the Directives currently
in force in this area, in particular
Directive 96/9/EC of theEuropean Parliament and of theCouncil4, Directive 2000/31/EC
of the European Parliament andof the Council5, Directive
2001/29/EC of the European
Parliament and of the Council6 ,Directive 2006/115/EC of theEuropean Parliament and of theCouncil7, Directive 2009/24/EC(4)This Directive is based
upon, and complements, therules laid down in the
Directives currently in force inthis area, in particular
Directive 96/9/EC of theEuropean Parliament and of theCouncil4, Directive
2000/31/EC of the European
Parliament and of theCouncil5, Directive
2001/29/EC of the European
Parliament and of the Council6,
Directive 2006/115/EC of thetransparency of authors' andperformers' contracts, on
authors’ and performers’
remuneration, as well as amechanism for the revocation of
the rights that authors andperformers have transferred on
an exclusive basis.

(4) This Directive is based upon,and complements, the rules laid
down in the Directives currently
in force in this area, in particular
Directive 96/9/EC of theEuropean Parliament and of theCouncil4, Directive 2000/31/EC
of the European Parliament andof the Council5, Directive
2001/29/EC of the European
Parliament and of the Council6,
Directive 2006/115/EC of theEuropean Parliament and of theCouncil7, Directive 2009/24/EC

Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 77, 27.3.1996, p. 20–
28).
Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, inparticular electronic commerce, in the Internal Market (OJ L 178, 17.07.2000, p. 1–16).
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related
rights in the information society (OJ L 167, 22.6.2001, p. 10–19).
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights
related to copyright in the field of intellectual property (OJ L 376, 27.12.2006, p. 28–35).
6

14.

8
9
10

Parliament and of the Council8,
Directive 2012/28/EU of theEuropean Parliament and of
the Council9 and Directive
2014/26/EU of the European
Parliament and of theCouncil10.

(5)
In the fields ofresearch, education andpreservation of cultural
heritage, digital technologies
permit new types of uses thatare not clearly covered by thecurrent Union rules on
exceptions and limitations. In
addition, the optional nature of
exceptions and limitations
provided for in Directives
2001/29/EC, 96/9/EC and2009/24/EC in these fields may
negatively impact the(5) In the fields of research,innovation, education andpreservation of cultural heritage,
digital technologies permit new
types of uses that are not clearly
covered by the current Union
rules on exceptions andlimitations. In addition, theoptional nature of exceptions andlimitations provided for in
Directives 2001/29/EC, 96/9/EC
and 2009/24/EC in these fields
may negatively impact thefunctioning of the internal market.

of the European Parliament and of
the Council8, Directive
2012/28/EU of the European
Parliament and of the Council9and Directive 2014/26/EU of theEuropean Parliament and of theCouncil10 .

(5)
In the fields ofresearch, education andpreservation of cultural
heritage, digital technologies
permit new types of uses thatare not clearly covered by thecurrent Union rules on
exceptions and limitations. In
addition, the optional nature of
exceptions and limitations
provided for in Directives
2001/29/EC, 96/9/EC and2009/24/EC in these fields may
negatively impact theEuropean Parliament and of theCouncil7, Directive
2009/24/EC of the European
Parliament and of the Council8,
Directive 2012/28/EU of theEuropean Parliament and of theCouncil9 and Directive
2014/26/EU of the European
Parliament and of theCouncil10.

(5)
In the fields of research,innovation, education andpreservation of cultural heritage,
digital technologies permit new
types of uses that are not clearly
covered by the current Union
rules on exceptions andlimitations. In addition, theoptional nature of exceptions andlimitations provided for in
Directives 2001/29/EC, 96/9/EC
and 2009/24/EC in these fields
may negatively impact thefunctioning of the internalof the European Parliament andof the Council8, Directive
2012/28/EU of the European
Parliament and of the Council9and Directive 2014/26/EU of theEuropean Parliament and of theCouncil10.

Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (OJ L
111, 5.5.2009, p. 16–22).
Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on certain permitted uses of orphan works (OJ L
299, 27.10.2012, p. 5–12).
Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective management of copyright andrelated rights and multi-territorial licensing of rights in musical works for online use in the internal market (OJ L 84, 20.3.2014, p. 72–98).
7

functioning of the internalmarket. This is particularly
relevant as regards crossborder uses, which arebecoming increasingly
important in the digital
environment. Therefore, theexisting exceptions andlimitations in Union law thatare relevant for scientificresearch, teaching andpreservation of cultural
heritage should be reassessedin the light of those new uses.
Mandatory exceptions orlimitations for uses of text anddata mining technologies in thefield of scientific research,illustration for teaching in thedigital environment and forpreservation of cultural
heritage should be introduced.
For uses not covered by the
exceptions or the limitation
provided for in this Directive,the exceptions and limitations
existing in Union law should
continue to apply. Directives
96/9/EC and 2001/29/EC
should be adapted.

This is particularly relevant as
regards cross-border uses, which
are becoming increasingly
important in the digital
environment. Therefore, theexisting exceptions andlimitations in Union law that are
relevant for innovation, scientificresearch, teaching andpreservation of cultural heritage
should be reassessed in the lightof those new uses. Mandatory
exceptions or limitations for usesof text and data mining
technologies in the field ofinnovation and scientificresearch, illustration for teachingin the digital environment and forpreservation of cultural heritage
should be introduced. For uses notcovered by the exceptions or thelimitation provided for in thisDirective, the exceptions andlimitations existing in Union law
should continue to apply.
Therefore, existing wellfunctioning exceptions in those
fields should be allowed tocontinue to be available in
Member States, as long as they
do not restrict the scope of the
exceptions or limitations
8

functioning of the internalmarket. This is particularly
relevant as regards crossborder uses, which arebecoming increasingly
important in the digital
environment. Therefore, theexisting exceptions andlimitations in Union law thatare relevant for scientificresearch, teaching andpreservation of cultural
heritage should be reassessedin the light of those new uses.
Mandatory exceptions orlimitations for uses of text anddata mining technologies in thefield of scientific research,illustration for teaching in thedigital environment and forpreservation of cultural
heritage should be introduced.
For uses not covered by the
exceptions or the limitation
provided for in this Directive,
theThe exceptions andlimitations existing in Union
law should continue to apply,
including to text and data
mining, education andpreservation activities, aslong as they do not limit themarket. This is particularly
relevant as regards cross-borderuses, which are becoming
increasingly important in thedigital environment. Therefore,
the existing exceptions andlimitations in Union law that are
relevant for innovation,scientific research, teaching andpreservation of cultural heritage
should be reassessed in the lightof those new uses. Mandatory
exceptions or limitations for usesof text and data mining
technologies in the field of
scientific research, illustration
for teaching in the digital
environment and for preservationof cultural heritage should be
introduced. For uses not coveredby the exceptions or thelimitation provided for in thisDirective, theThe exceptions andlimitations existing in Union law
should continue to apply,
including to text and data
mining, education andpreservation activities, as longas they do not limit the scope ofthe mandatory exceptions laid
down in this Directive, which
need to be implemented by

16.

15.

(7)
The protection oftechnological measuresestablished in Directive
2001/29/EC remains essential
to ensure the protection and theeffective exercise of the rights(6)
The exceptions and thelimitation set out in thisDirective seek to achieve a fairbalance between the rights andinterests of authors and otherrightholders on the one hand,and of users on the other. They
can be applied only in certain
special cases which do notconflict with the normal
exploitation of the works orother subject-matter and do notunreasonably prejudice thelegitimate interests of therightholders.

(7)
The protection oftechnological measuresestablished in Directive
2001/29/EC remains essential toensure the protection and theeffective exercise of the rights(6) The exceptions and thelimitation limitations set out inthis Directive seek to achieve afair balance between the rights
and interests of authors and otherrightholders on the one hand, andof users on the other. They can beapplied only in certain special
cases which do not conflict with
the normal exploitation of theworks or other subject-matter anddo not unreasonably prejudice thelegitimate interests of therightholders.

provided for in this Directive.
Directives 96/9/EC and2001/29/EC should be adapted.

(7)
The protection oftechnological measuresestablished in Directive
2001/29/EC remains essential
to ensure the protection and theeffective exercise of the rights(6)
The exceptions and thelimitation set outprovided forin this Directive seek toachieve a fair balance between
the rights and interests ofauthors and other rightholders
on the one hand, and of users
on the other. They can beapplied only in certain special
cases which do not conflictwith the normal exploitation of
the works or other subjectmatter and do not unreasonably
prejudice the legitimate
interests of the rightholders.

scope of the mandatory
exceptions laid down in thisDirective and on condition
that their application does
not adversely affect nor
circumvent the mandatory
rules set out in this Directive.
Directives 96/9/EC and2001/29/EC should be adapted.

(7)
The protection oftechnological measuresestablished in Directive
2001/29/EC remains essential toensure the protection and theeffective exercise of the rights(6)
The exceptions andlimitations set outprovided for inthis Directive seek to achieve afair balance between the rights
and interests of authors and otherrightholders on the one hand, andof users on the other. They canbe applied only in certain special
cases which do not conflict with
the normal exploitation of theworks or other subject-matterand do not unreasonably
prejudice the legitimate interestsof the rightholders.

Member States in their nationallaw and on condition that theirapplication does not adversely
affect nor circumvent the
mandatory rules set out in thisDirective. Directives 96/9/EC
and 2001/29/EC should be
adapted.

9

granted to authors and to otherrightholders under Union law.
This protection should bemaintained while ensuring thatthe use of technologicalmeasures does not prevent theenjoyment of the exceptions
and the limitation establishedin this Directive, which areparticularly relevant in the
online environment.
Rightholders should have theopportunity to ensure thisthrough voluntary measures.
They should remain free tochoose the format and themodalities to provide thebeneficiaries of the exceptions
and the limitation establishedin this Directive with themeans to benefit from themprovided that such means areappropriate. In the absence ofvoluntary measures, Member
States should take appropriate
measures in accordance withthe first subparagraph of
Article 6(4) of Directive
2001/29/EC.

granted to authors and to othergranted to authors and to otherrightholders under Union law.
rightholders under Union law.
This protection should beThis protection should bemaintained while ensuring that the maintained while ensuring thatuse of technological measuresthe use of technologicaldoes not prevent the enjoyment of measures does not prevent thethe exceptions and the limitation
enjoyment of the exceptions
established in this Directive,
and the limitation establishedwhich are particularly relevant in in this Directive, which are
the online environment.
particularly relevant in the
Rightholders should have theonline environment..
opportunity to ensure this through Rightholders should have thevoluntary measures. They should opportunity to ensure thisremain free to choose the format
through voluntary measures.
and the modalities to provide the
They should remain free tobeneficiaries of the exceptions
choose the format and theand the limitation established inmodalities tothis Directive with the means toprovideappropriate means ofbenefit from them provided thatenabling the beneficiaries ofsuch means are appropriate. In the the exceptions and theabsence of voluntary measures,
limitation established in thisMember States should takeDirective with the means toappropriate measures inbenefit from them provided
accordance with the firstthat such means aresubparagraph of Article 6(4) ofappropriate. In the absence of
Directive 2001/29/EC.
voluntary measures, Member
States should take appropriate
measures in accordance withthe first subparagraph of
Article 6(4) of Directive
2001/29/EC, including where
works and other subject10

granted to authors and to otherrightholders under Union law.
This protection should bemaintained while ensuring thatthe use of technologicalmeasures does not prevent theenjoyment of the exceptions andlimitations established in thisDirective, which are particularly
relevant in the online
environment.. Rightholders
should have the opportunity toensure this through voluntarymeasures. They should remain
free to choose the format and themodalities to provideappropriate
means of enabling thebeneficiaries of the exceptions
and limitations established in thisDirective with the means tobenefit from them provided thatsuch means are appropriate. In
the absence of voluntarymeasures, Member States shouldtake appropriate measures inaccordance with the firstsubparagraph of Article 6(4) of
Directive 2001/29/EC, including
where works and other subjectmatter are made available
through on-demand services.

17.

(8)
New technologies
enable the automatedcomputational analysis of
information in digital form,
such as text, sounds, images ordata, generally known as text
and data mining. Thosetechnologies allow researchers
to process large amounts of
information to gain new
knowledge and discover new
trends. Whilst text and data
mining technologies areprevalent across the digital
economy, there is widespreadacknowledgment that text anddata mining can in particular
benefit the research community
and in so doing encourage
innovation. However, in theUnion, research organisations
such as universities andresearch institutes areconfronted with legal
uncertainty as to the extent towhich they can perform text
and data mining of content. In
certain instances, text and data
mining may involve acts

(8) New technologies enable theautomated computational analysis
of information in digital form,
such as text, sounds, images ordata, generally known as text anddata mining. Those technologies
allow researchers to process Text
and data mining allows thereading and analysis of large
amounts of digitally stored
information to gain new
knowledge and discover new
trends. Whilst text and data
mining technologies are prevalentacross the digital economy, there
is widespread acknowledgmentthat text and data mining can inparticular benefit the researchcommunity and in so doing
encourage innovation. However,in the Union, researchorganisations such as universities
and research institutes areconfronted with legal uncertainty
as to the extent to which they can
perform text and data mining ofcontent. In certain instances, text
and data mining may involve acts
protected by copyright and/or by
11

matter are made available
through on-demand services.

(8)
New technologies
enable the automatedcomputational analysis of
information in digital form,
such as text, sounds, images ordata, generally known as text
and data mining. Thosetechnologies allow researchers
to process large amounts of
information with a view togaingaining new knowledge
and discoverdiscovering new
trends. Whilst text and data
mining technologies areprevalent across the digital
economy, there is widespreadacknowledgment that text anddata mining can in particular
benefit the research community
and in so doing
encouragesupport innovation.
However, in the Union, These
technologies benefit researchorganisations such asuniversities and well as
cultural heritage institutions,which may also carry out
research institutesin thecontext of their main

(8)
New technologies enable
the automated computational
analysis of information in digitalform, such as text, sounds,
images or data, generally known
as text and data mining. Text anddata mining allows theprocessing of large amounts of
information with a view togaining new knowledge anddiscovering new trends. Whilst
text and data mining
technologies are prevalent acrossthe digital economy, there is
widespread acknowledgmentthat text and data mining can inparticular benefit the researchcommunity and in so doing
support innovation. These
technologies benefit universities
and other research organisations
as well as cultural heritage
institutions, which may also
carry out research in the context
of their main activities.
However, in the Union, suchorganisations and institutions areconfronted with legal uncertainty
as to the extent to which they can
perform text and data mining of

18.

protected by copyright and/or
by the sui generis databaseright, notably the reproductionof works or other subjectmatter and/or the extraction ofcontents from a database.
Where there is no exception orlimitation which applies, anauthorisation to undertake suchacts would be required fromrightholders. Text and data
mining may also be carried out
in relation to mere facts or data
which are not protected bycopyright and in such instances
no authorisation would be
required.

(8a) Text and data mining
may also be carried out inrelation to mere facts or data
which are not protected bycopyright and in such instances
no authorisation would be isrequired under copyright law.

[Last phrase of recital (8) of
the COM proposal was moved
to new recital (8a) Council's
text -see following row 18]

the sui generis database right,
activities. However, in thenotably the reproduction of works Union, such organisations
or other subject-matter and/or the and institutions are
extraction of contents from a
confronted with legal
database. Where there is no
uncertainty as to the extent to
exception or limitation which
which they can perform text
applies, an authorisation toand data mining of content. In
undertake such acts would becertain instances, text and datarequired from rightholders. Text
mining may involve actsand data mining may also beprotected by copyright and/or
carried out in relation to mereby the sui generis databasefacts or data which are notright, notably the reproduction
protected by copyright and in such of works or other subjectinstances no authorisation would
matter and/or the extraction of
be required.
contents from a database.
Where there is no exception orlimitation which applies, anauthorisation to undertake suchacts would be required fromrightholders.

12content. In certain instances, text
and data mining may involve
acts protected by copyrightand/or by the sui generis
database right, notably the
reproduction of works or othersubject-matter and/or the
extraction of contents from a
database, which for example
happens when the data isnormalised in the process of text
and data mining. Where there is
no exception or limitation whichapplies, an authorisation toundertake such acts would be
required from rightholders.

(8a) Text and data mining may
also be carried out in relation tomere facts or data which are notprotected by copyright and insuch instances no authorisation isrequired under copyright law.
There may also be instances of19.

(8a) For text and data mining tooccur, it is in most cases
necessary first to accessinformation and then to
reproduce it. It is generally only
after that information isnormalised that it can beprocessed through text and data
13

There may also be instancesof text and data mining
which do not involve acts ofreproduction or where thereproductions made fallunder the The new exception
should be without prejudice tothe existing mandatory
exception for temporary acts ofreproduction laid down in
Article 5(1) of Directive
2001/29/EC, which should
continue to apply to text anddata mining techniques which
do not involve the making of
copies beyond the scope of thatexception.
[First phrase of new recital(8a) was taken from recital (8)(last phrase), second phrase of
new recital (8a) was takenfrom recital (10) (second
phrase)]text and data mining which do
not involve acts of reproduction
or where the reproductions madefall under the mandatory
exception for temporary acts ofreproduction laid down in Article
5(1) of Directive 2001/29/EC,
which should continue to apply
to text and data mining
techniques which do not involvethe making of copies beyond thescope of that exception.

[deleted]

mining. Once there is lawfulaccess to information, it is whenthat information is being
normalised that a copyrightprotected use takes place, since
this leads to a reproduction bychanging the format of theinformation or by extracting itfrom a database into a format
that can be subjected to text anddata mining. The copyrightrelevant processes in the use of
text and data mining technology
is, consequently, not the text anddata mining process itself which
consists of a reading andanalysis of digitally stored,
normalised information, but theprocess of accessing and theprocess by which information isnormalised to enable its
automated computational
analysis, insofar as this process
involves extraction from a
database or reproductions. The
exceptions for text and data
mining purposes provided for inthis Directive should beunderstood as referring to such
copyright-relevant processes
necessary to enable text and data
mining. Where existing copyright
14

20.

(9)
Union law alreadyprovides certain exceptions andlimitations covering uses forscientific research purposes
which may apply to acts of text
and data mining. However,those exceptions andlimitations are optional and not
fully adapted to the use oftechnologies in scientificresearch. Moreover, where
researchers have lawful accessto content, for example throughsubscriptions to publications oropen access licences, the termsof the licences may exclude
text and data mining. As
research is increasingly carriedout with the assistance ofdigital technology, there is arisk that the Union's
competitive position as a
research area will suffer unlesssteps are taken to address thelegal uncertainty for text anddata mining.

law has been inapplicable to usesof text and data mining, suchuses should remain unaffected bythis Directive.

(9)
Union law already(9)
Union law alreadyprovides certain exceptions andprovides for certain exceptions
limitations covering uses forand limitations covering uses
scientific research purposes which for scientific research purposes
may apply to acts of text and data which may apply to acts of text
mining. However, thoseand data mining. However,exceptions and limitations arethose exceptions andoptional and not fully adapted tolimitations are optional and not
the use of technologies infully adapted to the use ofscientific research. Moreover,technologies in scientificwhere researchers have lawful
research. Moreover, where
access to content, for example
researchers have lawful accessthrough subscriptions toto content, for example throughpublications or open accesssubscriptions to publications or
licences, the terms of the licences open access licences, the terms
may exclude text and data mining. of the licences may exclude
As research is increasingly carried text and data mining. As
out with the assistance of digital
research is increasingly carried
technology, there is a risk that the out with the assistance ofUnion's competitive position as a digital technology, there is a
research area will suffer unlessrisk that the Union's
steps are taken to address the legal competitive position as a
uncertainty for text and data
research area will suffer unlessmining.
steps are taken to address thelegal uncertainty for text anddata mining.

15(9) Union law provides forcertain exceptions andlimitations covering uses forscientific research purposes
which may apply to acts of text
and data mining. However, those
exceptions and limitations are
optional and not fully adapted tothe use of technologies inscientific research. Moreover,where researchers have lawfulaccess to content, for example
through subscriptions topublications or open accesslicences, the terms of thelicences may exclude text anddata mining. As research isincreasingly carried out with theassistance of digital technology,
there is a risk that the Union's
competitive position as a
research area will suffer unlesssteps are taken to address thelegal uncertainty for text anddata mining.

21.

(10) This legal uncertainty(10) This legal uncertainty should
should be addressed by
be addressed by providing for aproviding for a mandatory
mandatory exception for research
exception to the right oforganisations to the right ofreproduction and also to thereproduction and also to the right
right to prevent extraction from to prevent extraction from aa database. The new exception database. The new exception
should be without prejudice to should be without prejudice to thethe existing mandatory
existing mandatory exception on
exception on temporary acts of temporary acts of reproduction
reproduction laid down inlaid down in Article 5(1) of
Article 5(1) of Directive
Directive 2001/29, which should
2001/29, which should
continue to apply to text and data
continue to apply to text andmining techniques which do notdata mining techniques which
involve the making of copies
do not involve the making ofgoing beyond the scope of that
copies going beyond the scope exception. Research organisationsof that exception. Researchshould also benefit from theorganisations should also
exception when they engage into
benefit from the exception
public-private partnerships.
when they engage into public- Educational establishments andprivate partnerships.
cultural heritage institutions that
conduct scientific researchshould also be covered by the text
and data mining exception,
provided that the results of theresearch do not benefit anundertaking exercising a decisive
influence upon suchorganisations in particular. In
16(10) This legal uncertainty
should be addressed byproviding for a mandatory
exception to the exclusive rightof reproduction and also to theright to prevent extraction froma database. The new exception
should be without prejudice tothe existing mandatory
exception on temporary acts ofreproduction laid down in
Article 5(1) of Directive
2001/29, which should
continue to apply to text anddata mining techniques which
do not involve the making of
copies going beyond the scopeof that exception. In line withthe existing European
research policy, which
encourages universities andresearch institutes to develop
collaborations with theprivate sector,
Researchresearchorganisations should also
benefit from the exception
when they engage into theirresearch activities arecarried out in the framework(10) This legal uncertainty
should be addressed byproviding for a mandatory
exception for universities andother research organisations, aswell as cultural heritage
institutions to the exclusive rightof reproduction and also to theright to prevent extraction from a
database. In line with theexisting European researchpolicy, which encourages
universities and research
institutes to develop
collaborations with the private
sector, research organisations
should also benefit from theexception when their research
activities are carried out in theframework of public-private
partnerships. While researchorganisations and cultural
heritage institutions should
remain the beneficiaries of the
exception, they should be able torely on their private partners forcarrying out text and data
mining, including by using theirtechnological tools.

22.

(11) Research organisations
across the Union encompass awide variety of entities theprimary goal of which is toconduct scientific research or
to do so together with theprovision of educational
services. Due to the diversityof such entities, it is importantto have a common
understanding of thebeneficiaries of the exception.
Despite different legal forms
and structures, researchorganisations across Member
States generally have in(11) Research organisations
across the Union encompass awide variety of entities theprimary goal of which is toconduct scientific research or to
do so together with the provisionof educational services. The term"scientific research" within themeaning of this Directive covers
both the natural sciences and thehuman sciences. Due to thediversity of such entities, it isimportant to have a common
understanding of researchorganisations. They should forexample cover, besidesof public-private partnerships.
[as to the last sentence of the EP
the event that the research iscarried out in the framework of a While research organisations text, see recitals 11(c), row 25]
public-private partnership, theand cultural heritage
undertaking participating in theinstitutions should remain
public-private partnership should the beneficiaries of thealso have lawful access to the
exception, they should beworks and other subject matter.
able to rely on their private
The reproductions andpartners for carrying out text
extractions made for text andand data mining, including
data mining purposes should be
by using their technologicalstored in a secure manner and in tools.
a way that ensures that the copies [The second phrase of recitalare only used for the purpose of(10) of the COM proposal wasscientific research.
moved to new recital (8a) - see
row 18](11) Research organisations(11) Research organisations
across the Union encompass a
across the Union encompass awide variety of entities thewide variety of entities theprimary goal of which is toprimary goal of which is toconduct scientific research or to
conduct scientific research or
do so together with the provision
to do so together with theof educational services. Due to the provision of educational
diversity of such entities, it isservices. The term "scientificimportant to have a common
research" within theunderstanding of the beneficiaries meaning of this Directiveof the exception. Despite different covers both the natural
legal forms and structures,sciences and the humanresearch organisations acrosssciences. Due to the diversity
Member States generally have inof such entities, it is importantcommon that they act either on ato have a common
not for profit basis or in theunderstanding of the17common that they act either ona not for profit basis or in thecontext of a public-interest
mission recognised by theState. Such a public-interest
mission may, for example, be
reflected through publicfunding or through provisions
in national laws or public
contracts. At the same time,organisations upon which
commercial undertakings havea decisive influence allowing
them to exercise control
because of structural situations
such as their quality ofshareholders or members,
which may result inpreferential access to theresults of the research, should
not be considered researchorganisations for the purposesof this Directive.

context of a public-interest
beneficiaries of themission recognised by the State.
exception.research
Such a public-interest mission
organisations. They shouldmay, for example, be reflected
for example cover entities
through public funding or through such as research institutes,
provisions in national laws or
hospitals carrying out
public contracts. At the same
research, universities,
time, organisations upon which
including universitycommercial undertakings have alibraries, or other higher
decisive influence allowing themeducation institutions.
to exercise control because of
Despite different legal forms
structural situations such as theirand structures, research
quality of shareholders ororganisations across themembers, which may result inMember States generally havepreferential access to the results of in common that they act either
the research, should not be
on a not for profit basis or inconsidered research organisations the context of a public-interestfor the purposes of this Directive. mission recognised by theState. Such a public-interest
mission may, for example, be
reflected through publicfunding or through provisions
in national laws or public
contracts. At the same
timeConversely, organisations
upon which commercial
undertakings have a decisive
influence allowing them toexercise control because ofstructural situations such as
their quality of shareholders or
members, which may result in
18

universities or other higher
education institutions and theirlibraries, also entities such as
research institutes, hospitals
carrying out research. Despite
different legal forms andstructures, research organisations
across the Member States
generally have in common thatthey act either on a not for profit
basis or in the context of apublic-interest mission
recognised by the State. Such a
public-interest mission may, forexample, be reflected throughpublic funding or throughprovisions in national laws or
public contracts. Conversely,organisations upon which
commercial undertakings have adecisive influence allowing themto exercise control because ofstructural situations such as their
quality of shareholders or
members, which may result inpreferential access to the resultsof the research, should not be
considered researchorganisations for the purposes ofthis Directive.

23.

(11a) Cultural heritage
institutions should beunderstood as covering
publicly accessible libraries,
museums and archives
regardless of the type ofworks and other subject
matter which they hold in
their permanent collections,as well as film or audio
heritage institutions. They
should include, among
others, national libraries andnational archives. They
should also include
educational establishments
and public sector
broadcasting organisations,as far as their archives andpublicly accessible libraries
are concerned.

(11b) Research organisations
and cultural heritage institutions,
including the persons attachedthereto, should be covered by the(11a) Cultural heritage
institutions should be understoodas covering publicly accessible
libraries or and museums andarchives regardless of the type ofworks and other subject matter
which they hold in theirpermanent collections, as well asarchives, film or audio heritage
institutions. They should include,
among others, national libraries
and national archives. They
should also include educational
establishments, and public sector
broadcasting organisations andresearch organisations, as far
as their archives and publicly
accessible libraries areconcerned.

preferential access to theresults of the research, should
not be considered researchorganisations for the purposesof this Directive.

24.

(11b) Researchorganisations and cultural
heritage institutions,
including the persons
19

25.

20

(11c) Researchorganisations and cultural
heritage institutions may incertain cases, for example forsubsequent verification of

attached thereto, should becovered by the text and data
mining exception regarding
content to which they havelawful access. Lawful accessshould be understood ascovering access to content
based on open access policyor through contractual
arrangements between
rightholders and researchorganisations or cultural
heritage institutions, such as
subscriptions, or throughother lawful means. For
instance, in cases ofsubscriptions taken byresearch organisations orcultural heritage institutions,the persons attached thereto
covered by thesesubscriptions would be
deemed to have lawful access.
Lawful access also covers
access to content that isfreely available online.

(11c) Research organisations
and cultural heritage institutions
may in certain cases, for example
for subsequent verification ofscientific research results, needtext and data mining exception
regarding content to which they
have lawful access. Lawfulaccess should be understood ascovering access to content basedon open access policy or throughcontractual arrangements
between rightholders andresearch organisations or cultural
heritage institutions, such as
subscriptions, or through otherlawful means. For instance, incases of subscriptions taken byresearch organisations or cultural
heritage institutions, the persons
attached thereto covered by thesesubscriptions would be deemed
to have lawful access. Lawfulaccess also covers access tocontent that is freely available
online.

21

scientific research results,
need to retain the copies
made under the exception forthe purposes of carrying out
text and data mining. In suchcases, the copies should be
stored in a secureenvironment and not beretained for longer thannecessary for the scientificresearch activities. Member
States may determine, at
national level and after
discussions with relevant
stakeholders, further
concrete modalities forretaining the copies,
including the possibility to
appoint trusted bodies forthe purpose of storing suchcopies. In order not tounduly restrict theapplication of the exception,these modalities should be
proportionate and limited towhat is needed for retaining
the copies in a safe mannerand preventing unauthorised
uses. Uses for the purpose ofscientific research other thantext and data mining, such as
scientific peer review andto retain the copies made underthe exception for the purposes ofcarrying out text and data
mining. In such cases, the copies
should be stored in a secureenvironment. Member States
may determine, at national level
and after discussions with
relevant stakeholders, further
concrete modalities for retaining
the copies, including thepossibility to appoint trusted
bodies for the purpose of storingsuch copies. In order not tounduly restrict the application of
the exception, these modalities
should be proportionate andlimited to what is needed forretaining the copies in a safemanner and preventing
unauthorised uses. Uses for the
purpose of scientific researchother than text and data mining,such as scientific peer review
and joint research, should remaincovered, where applicable, by
the exception or limitation
provided for in Article 5(3)(a) of
Directive 2001/29/EC.

26.

(12) In view of a potentiallyhigh number of access requests
to and downloads of theirworks or other subject-matter,rightholders should be allowed
to apply measures where there
is risk that the security andintegrity of the system or
databases where the works orother subject-matter are hosted
would be jeopardised. Those
measures should not exceed
what is necessary to pursue theobjective of ensuring thesecurity and integrity of thesystem and should notundermine the effective
application of the exception.

(12) In view of a potentiallyhigh number of access requests toand downloads of their works orother subject-matter, rightholders
should be allowed to apply
measures where there is risk thatthe security and integrity of thesystem or databases where theworks or other subject-matter are
hosted would be jeopardised.
Those measures should notexceed what is necessary to
pursue the objective of ensuring
the security and integrity of thesystem and should not undermine
the effective application of the
exception.

22

joint research, should remaincovered, where applicable,by the exception or limitation
provided for in Article
5(3)(a) of Directive
2001/29/EC.

(12) In view of a potentiallyhigh number of access requests
to and downloads of theirworks or other subject-matter,rightholders should be allowed
to apply measures wherewhen
there is a risk that the security
and integrity of thesystemtheir systems or
databases where the works orother subject-matter are hosted
wouldcould be jeopardised.
ThoseSuch measures could
for example be used toensure that only persons
having lawful access to theirdata can access it, including
through IP address
validation or user
authentication. These
measures should not exceed
what is necessary to pursue theobjective of ensuring thesecurity and integrity of thesystemhowever remain(12) In view of a potentiallyhigh number of access requests
to and downloads of their works
or other subject-matter,rightholders should be allowed toapply measures when there is arisk that the security andintegrity of their systems or
databases could be jeopardised.
Such measures could forexample be used to ensure that
only persons having lawfulaccess to their data can access it,
including through IP address
validation or user authentication.
Those measures should remain
proportionate to the risks andshould not exceed what isnecessary to pursue theobjective of ensuring thesecurity and integrity of thesystem and should notundermine the effective
application of the exception.
These measures should howeverremain proportionate to the risks
involved and should not preventor make excessively difficult text
and data mining carried out by
researchers.

(13) In view of the nature andscope of the exception, which islimited to entities carrying out
scientific research any potential
harm to rightholders createdthrough this exception should be
minimal. Therefore, Member
States should not provide forcompensation for rightholders as
regards uses under the text anddata mining exceptions
introduced by this Directive.

proportionate to the risks
involved and should notundermine the effective
application of the
exceptionprevent or makeexcessively difficult text anddata mining carried out by
researchers.
27.

(13) There is no need to(13) There is no need toIn
provide for compensation forview of the nature and scoperightholders as regards uses under of the exception, which is
the text and data mining exception limited to entities carrying
introduced by this Directive given out scientific research any
that in view of the nature andpotential harm toscope of the exception the harmrightholders created throughshould be minimal.
this exception should be
minimal. Therefore, Member
States should not provide forcompensation for rightholders
as regards uses under the text
and data mining exception
introduced by this Directive
given that in view of the natureand scope of the exception theharm should be minimal.

(13a) In addition to theirsignificance in the context ofscientific research, text and data
mining techniques are widelyused both by private and public(13) There is no need toprovide for compensation forrightholders as regards uses
under the text and data mining
exception introduced by thisDirective given that in view of
the nature and scope of the
exception the harm should be
minimal.

28.

(13a) In addition to theirsignificance in the context ofscientific research, text anddata mining techniques arewidely used both by private23

24

and public entities to analyse
large amounts of data in
different areas of life and forvarious purposes, including
for government services,complex business decisions
and the development of new
applications or technologies.
Rightholders should remainable to license the uses of
their works and othersubject-matter falling outside
the scope of the mandatory
exception provided for in thisDirective and the existing
exceptions and limitations
provided for in Directive
2001/29/EC. At the sametime, consideration should begiven to the fact that users oftext and data mining
techniques may be faced withlegal uncertainty as towhether temporary
reproductions andextractions which are a partof the process of text anddata mining may be carriedout on publicly available andlawfully accessed works andother subject-matter, inparticular when theentities to analyse large amountsof data in different areas of lifeand for various purposes,
including for government
services, complex businessdecisions and the development of
new applications or technologies.
Rightholders should remain able
to license the uses of their works
and other subject-matter fallingoutside the scope of themandatory exception provided
for in this Directive and theexisting exceptions andlimitations provided for in
Directive 2001/29/EC. At thesame time, consideration should
be given to the fact that users oftext and data mining techniques
may be faced with legal
uncertainty as to whether
temporary reproductions andextractions which are a part ofthe process of made for the
purposes of text and data mining
may be carried out on publicly
available and lawfully accessed
works and other subject-matter,in particular when the
reproductions or extractions

25

reproductions or extractions
made for the purposes of thetechnical process may not
fulfil all the conditions of theexisting exception for
temporary acts ofreproduction in Article 5(1)of Directive 2001/29/EC. In
order to provide for morelegal certainty in such cases,
this Directive should enable
the Member States toprovide under certain
conditions for an exception
or limitation for temporary
reproductions andextractions of works andother subject-matter, insofar
as these form a part of thetext and data mining process
and the copies made are not
kept beyond that process.
This optional exception orlimitation should only apply
when the work or othersubject-matter is accessedlawfully by the beneficiary,
including when it has been
made available to the public
online, and insofar as therightholders have notreserved the right to makemade for the purposes of thetechnical process may not fulfil
all the conditions of the existing
exception for temporary acts ofreproduction in Article 5(1) of
Directive 2001/29/EC.

In order to provide for morelegal certainty in such cases andto encourage innovation also inthe private sector, this Directive
should [enable the Member
States to] provide under certain
conditions for an exception orlimitation for
temporaryreproductions andextractions of works and othersubject-matter, insofar as theseform a part of the for the
purposes of text and data mining
process and allow the copies
made are not to be kept beyond
that process as long as necessary
for the text and data mining
purposes. This optional
exception or limitation should
only apply when the work orother subject-matter is accessedlawfully by the beneficiary,
including when it has been made

26

reproductions andextractions for text and data
mining, for example byagreement, unilateraldeclaration, including
through the use of machinereadable metadata or by theuse of technical means.
Rightholders should be able
to apply measures to ensurethat their reservations in thisregard are respected. This
optional exception orlimitation should leave intact
the mandatory exception for
text and data mining for
research purposes laid downin this Directive.

available to the public online,
and insofar as the rightholders
have not reserved the rights tomake reproductions andextractions for text and data
mining for example byagreement, unilateral declaration,
including through the use ofmachine readable metadata or by
the use of technical means. inan appropriate manner. In thecase of content that has been
made publicly available online,
it should only be consideredappropriate to reserve therights by the use of machinereadable means, including
metadata and terms andconditions of a website or aservice. Other uses shall not beaffected by the reservation ofrights for the purposes of text
and data mining. In othercases, it may be appropriate toreserve the rights by othermeans, such as this may be
expressed by contractual
agreements or unilateraldeclaration, as appropriate.
Rightholders should be able to

29.

30.

(14) Article 5(3)(a) of
Directive 2001/29/EC allows
Member States to introduce an
exception or limitation to therights of reproduction,communication to the public(13a) To encourage innovation
also in the private sector,
Member States should be able toprovide for an exception goingfurther than the mandatory
exception, provided that the useof works and other subject matter
referred to therein has not been
expressly reserved by theirrightholders including bymachine readable means.
(14) Article 5(3)(a) of Directive
2001/29/EC allows Member
States to introduce an exception orlimitation to the rights ofreproduction, communication to
the public and making available
27(14) Article 5(3)(a) of
Directive 2001/29/EC allows
Member States to introduce an
exception or limitation to therights of reproduction,communication to the public

apply measures to ensure that
their reservations in this regard
are respected. This [optional]
exception or limitation should
leave intact the mandatory
exception for text and data
mining for research purposes laid
down in this Directive, as well as
the existing exception for
temporary acts of reproduction in
Article 5(1) of Directive
2001/29/EC.

[deleted](14) Article 5(3)(a) of
Directive 2001/29/EC allows
Member States to introduce an
exception or limitation to therights of reproduction,communication to the public andand making available to the
public for the sole purpose of,among others, illustration forteaching. In addition, Articles
6(2)(b) and 9(b) of Directive
96/9/EC permit the use of adatabase and the extraction or
re-utilization of a substantial
part of its contents for the
purpose of illustration forteaching. The scope of those
exceptions or limitations as
they apply to digital uses is
unclear. In addition, there is alack of clarity as to whether
those exceptions or limitations
would apply where teaching isprovided online and thereby ata distance. Moreover, theexisting framework does notprovide for a cross-bordereffect. This situation may
hamper the development ofdigitally-supported teachingactivities and distance learning.
Therefore, the introduction of a
new mandatory exception orlimitation is necessary toensure that educational
establishments benefit fromfull legal certainty when using
works or other subject-matterto the public for the sole purposeof, among others, illustration forteaching. In addition, Articles
6(2)(b) and 9(b) of Directive
96/9/EC permit the use of adatabase and the extraction or reutilization of a substantial part ofits contents for the purpose ofillustration for teaching. The
scope of those exceptions orlimitations as they apply to digitaluses is unclear. In addition, there
is a lack of clarity as to whether
those exceptions or limitations
would apply where teaching isprovided online and thereby at a
distance. Moreover, the existing
framework does not provide for across-border effect. This situation
may hamper the development ofdigitally-supported teachingactivities and distance learning.
Therefore, the introduction of a
new mandatory exception orlimitation is necessary to ensurethat educational establishments
benefit from full legal certainty
when using works or othersubject-matter in digital teachingactivities, including online andacross borders.

28

and making available to the
public of works and othersubject matter in such a waythat members of the public
may access them from aplace and a time individuallychosen by them (‘making
available to the public’), forthe sole purpose of, among
others, illustration for teaching.
In addition, Articles 6(2)(b)and 9(b) of Directive 96/9/EC
permit the use of a database
and the extraction or reutilization of a substantial partof its contents for the purposeof illustration for teaching. The
scope of those exceptions orlimitations as they apply todigital uses is unclear. In
addition, there is a lack ofclarity as to whether those
exceptions or limitations
would apply where teaching isprovided online and thereby ata distance. Moreover, theexisting legal framework does
not provide for a cross-bordereffect. This situation may
hamper the development ofdigitally-supported teachingactivities and distance learning.

making available to the public ofworks and other subject
matter in such a way thatmembers of the public may
access them from a place and atime individually chosen bythem ("making available to the
public"), for the sole purpose ofillustration for teaching. In
addition, Articles 6(2)(b) and9(b) of Directive 96/9/EC permit
the use of a database and theextraction of a substantial partof its contents for the purpose ofillustration for teaching. The
scope of those exceptions orlimitations as they apply todigital uses is unclear. In
addition, there is a lack of clarity
as to whether those exceptions orlimitations would apply where
teaching is provided online andat a distance. Moreover, theexisting legal framework does
not provide for a cross-bordereffect. This situation may
hamper the development ofdigitally-supported teachingactivities and distance learning.
Therefore, the introduction of a
new mandatory exception orlimitation is necessary to ensure

31.

in digital teaching activities,
including online and acrossborders.

(15) While distance learningand cross-border education
programmes are mostly
developed at higher educationlevel, digital tools andresources are increasingly used
at all education levels, inparticular to improve andenrich the learning experience.
The exception or limitation
provided for in this Directive
should therefore benefit all
educational establishments inprimary, secondary, vocationaland higher education to theextent they pursue theireducational activity for a noncommercial purpose. The
organisational structure and themeans of funding of an
educational establishment are(15) While distance learning andcross-border education
programmes are mostly developed
at higher education level, digital
tools and resources are
increasingly used at all educationlevels, in particular to improveand enrich the learning
experience. The exception orlimitation provided for in thisDirective should therefore benefit
all educational establishments inprimary, secondary, vocationaland higher education to the extent
they pursue their educational
activity for a non-commercial
purpose. The organisational
structure and the means offunding of an educational
establishment are not the decisive
factors to determine the non29(15) While distance learningand cross-border education
programmes are mostly
developed at higher educationlevel, digital tools andresources are increasingly used
at all education levels, inparticular to improve andenrich the learning experience.
The exception or limitation
provided for in this Directive
should therefore benefit all
educational establishments
inrecognised by a Member
State, including primary,secondary, vocational andhigher education. It should
apply only to the extent they
pursue their educational
activity for a that the uses are
justified by the non-

Therefore, the introduction of a
new mandatory exception orlimitation is necessary toensure that educational
establishments benefit fromfull legal certainty when using
works or other subject-matterin digital teaching activities,
including online and acrossborders.

(15) While distance learningand cross-border education
programmes are mostly
developed at higher educationlevel, digital tools and resources
are increasingly used at all
education levels, in particular to
improve and enrich the learning
experience. The exception orlimitation provided for in thisDirective should therefore
benefit all educational
establishments recognised by aMember State, including inprimary, secondary, vocationaland higher education. It should
apply only to the extent that theuses are justified by the noncommercial purpose of theparticular teaching activity.
The organisational structure andthat educational establishments
benefit from full legal certainty
when using works or othersubject-matter in digital teachingactivities, including online andacross borders.

32.

(16) The exception orlimitation should cover digitaluses of works and othersubject-matter such as the useof parts or extracts of works tosupport, enrich or complement
the teaching, including therelated learning activities. The
use of the works or othersubject-matter under the
exception or limitation should
be only in the context ofteaching and learning activities
carried out under the
responsibility of educational
establishments, including
during examinations, and belimited to what is necessary forthe purpose of such activities.
The exception or limitation

not the decisive factors todetermine the non-commercial
nature of the activity.

(16) The exception or limitation
should cover digital uses of works
and other subject-matter such as
the use of parts or extracts ofworks to support, enrich orcomplement the teaching,including the related learning
activities. The exception orlimitation of use should be
granted as long as the work orother subject-matter usedindicates the source, including
the authors’ name, unless thatturns out to be impossible forreasons of practicability. The useof the works or other subjectmatter under the exception orlimitation should be only in thecontext of teaching and learning
activities carried out under thecommercial nature of the activity.
Where cultural heritage
institutions pursue an
educational objective and are
involved in teaching activities, it
should be possible for Member
States to consider thoseinstitutions as an educational
establishment under thisexception in so far as theirteaching activities are concerned.

30

commercial purpose. of theparticular teaching activity.
The organisational structure
and the means of funding of an
educational establishment
areshould not be the decisive
factors to determine the noncommercial nature of theactivity.

the means of funding of an
educational establishment
should not be the decisive
factors to determine the noncommercial nature of theactivity.

In most cases, the concept ofillustration would therefore
imply uses of parts or extractsof works only, which should
not substitute the purchase of[…]*(16) The exception orGREEN
limitation for the sole purpose (16) The exception orof illustration for teaching
limitation for the sole purpose
provided for in this Directive of illustration for teachingshould cover be understood asprovided for in this Directive
covering digital uses of works should cover be understood as
and other subject-matter suchcovering digital uses of works
as the use of parts or extracts
and other subject-matter such asof works to support, enrich or
the use of parts or extracts ofcomplement the teaching,works to support, enrich or
including the related learningcomplement the teaching,activities.
including the related learning
activities.
[…]*

In most cases, the concept ofillustration would therefore
imply uses of parts or
extracts of works only, whichshould not substitute thepurchase of materials

33.

should cover both uses throughdigital means in the classroom
and online uses through theeducational establishment's
secure electronic network, theaccess to which should beprotected, notably byauthentication procedures. The
exception or limitation should
be understood as covering thespecific accessibility needs of
persons with a disability in thecontext of illustration forteaching.

(16a) The use of the works orother subject-matter under the
exception or limitation should
be only in the context of(16a) The use of the works orother subject-matter under the

GREEN

responsibility of educational
primarily intended formaterials primarily intended
establishments, including during
educational markets. Whenfor educational markets. Whenexaminations, and be limited to
implementing the exception
implementing the exception orwhat is necessary for the purpose
or limitation, Member States limitation, Member Statesof such activities. The exception
should remain free to specify, should remain free to specify,
or limitation should cover bothfor the different categories of for the different categories ofuses through digital means in theworks or other subjectworks or other subject-matterclassroom where the teaching
matter and in a balanced
and in a balanced manner, theactivity is physically provided,manner, the proportion of a
proportion of a work or otherincluding where it takes place
work or other subject-matter subject-matter that may beoutside the premises of thethat may be used for the sole used for the sole purpose ofillustration for teaching. The
educational establishment, forpurpose of illustration forteaching. The Uses allowed
example in libraries or cultural
Uses allowed under theunder the exception or
exception or limitation should be
heritage institutions, as long as
limitation should beunderstood to cover the specificthe use is made under theunderstood to cover theaccessibility needs of persons
responsibility of the educational
establishment, and online uses
specific accessibility needs ofwith a disability in the context ofthrough the educational
persons with a disability in the illustration for teaching.
establishment's secure electronic
context of illustration for*[The second and third phrase of
network environment, the accessteaching.
recital (16) of the COM proposal
to which should be protected,*[The
secondandthirdphrasewere moved to new recital (16a)notably by authenticationof recital (16) of the COM
Council's text - see row 33]
procedures. The exception or
proposal were moved to newlimitation should be understood as recital (16a) Council's text covering the specific accessibility see row 33]
needs of persons with a disability
in the context of illustration forteaching.

31

32

teaching and learning activities
carried out under the
responsibility of educational
establishments, including
during examinations orteaching activities taking
place outside the premises of
educational establishments,for example in a museum,library or another cultural
heritage institution, and belimited to what is necessary forthe purpose of such activities.
The exception or limitation
should cover both uses throughdigital means of works andother subject matter made in
the classroom and online uses
or in other venues throughdigital means, for example
electronic whiteboards ordigital devices which may beconnected to the Internet, as
well as uses made at a
distance through theeducational establishment's
secure electronic networks,
such as online courses oraccess to teaching material
complementing a given
course. Secure electronic
networks should be

exception or limitation should be
only in the context of teaching
and learning activities carried out
under the responsibility ofeducational establishments,
including during examinations
or teaching activities taking
place outside the premises of
educational establishments, forexample in a museum, libraryor another cultural heritage
institution, and be limited towhat is necessary for the purposeof such activities. The exception
or limitation should cover bothuses through digital means ofworks and other subject
matter made in the classroom
and online uses or in othervenues through digital means,for example electronic
whiteboards or digital devices
which may be connected to theInternet, as well as uses madeat a distance through theeducational establishment's
secure electronic networks
environments, such as online
courses or access to teachingmaterial complementing agiven course. Secure electronic
networks environments should

34.

(16a) A secure electronic
environment should beunderstood as a digital teaching
and learning environment,
access to which is limited
through an appropriate
authentication procedure to theeducational establishment’s
teaching staff and to the pupils
or students enrolled in a study
programme.
33

understood as digitalteaching and learning
environments the access towhich should be protected islimited to the educational
establishment's teaching staff
and to the pupils or students
enrolled in a study
programme, notably throughappropriate authentication
procedures, including
password based
authentication.

[Phrases of new recital (16a)were taken from recital (16)(second and third phrase) of
the COM proposal – see row
32]

be understood as digitalteaching and learning
environments the access towhich should be protected islimited to the educational
establishment's teaching staff
and to the pupils or students
enrolled in a study
programme, notably throughappropriate authentication
procedures, including password
based authentication.

[Deletion]

35.

(17) Different arrangements,
based on the implementation of
the exception provided for in
Directive 2001/29/EC or on
licensing agreements covering
further uses, are in place in a
number of Member States inorder to facilitate educational
uses of works and othersubject-matter. Sucharrangements have usually
been developed taking accountof the needs of educational
establishments and different
levels of education. Whereas itis essential to harmonise thescope of the new mandatory
exception or limitation in
relation to digital uses andcross-border teachingactivities, the modalities of
implementation may differ
from a Member State toanother, to the extent they do
not hamper the effective
application of the exception orlimitation or cross-border uses.
This should allow Member
States to build on the existingarrangements concluded atnational level. In particular,
Member States could decide to(17) Different arrangements,
based on the implementation of
the exception provided for in
Directive 2001/29/EC or on
licensing agreements covering
further uses, are in place in a
number of Member States in orderto facilitate educational uses ofworks and other subject-matter.
Such arrangements have usually
been developed taking account of
the needs of educational
establishments and different levelsof education. Whereas it isessential to harmonise the scopeof the new mandatory exception
or limitation in relation to digitaluses and cross-border teachingactivities, the modalities of
implementation may differ from a
Member State to another, to theextent they do not hamper theeffective application of the
exception or limitation or crossborder uses. This should allow
Member States to build on theexisting arrangements concluded
at national level. In particular,
Member States could decide to
subject the application of the
exception or limitation, fully or
partially, to the availability of34(17) Different arrangements,
based on the implementation of
the exception provided for in
Directive 2001/29/EC or on
licensing agreements covering
further uses, are in place in a
number of Member States inorder to facilitate educational
uses of works and othersubject-matter. Sucharrangements have usually
been developed taking accountof the needs of educational
establishments and different
levels of education. Whereas itis essential to harmonise thescope of the new mandatory
exception or limitation in
relation to digital uses andcross-border teachingactivities, the modalities of
implementation may differ
from a Member State toanother, to the extent they do
not hamper the effective
application of the exception orlimitation or cross-border uses.
Member States should forexample remain free torequire that the use of works
and other subject mattershould respect moral rights

GREEN(17) Different arrangements,
based on the implementation of
the exception provided for in
Directive 2001/29/EC or on
licensing agreements covering
further uses, are in place in a
number of Member States inorder to facilitate educational
uses of works and other subjectmatter. Such arrangements haveusually been developed taking
account of the needs ofeducational establishments anddifferent levels of education.
Whereas it is essential toharmonise the scope of the newmandatory exception orlimitation in relation to digitaluses and cross-border teachingactivities, the modalities of
implementation may differ froma Member State to another, to theextent they do not hamper theeffective application of the
exception or limitation or crossborder uses. Member Statesshould for example remain free
to require that the use of works
and other subject mattershould respect moral rights ofsubject the application of theadequate licences, covering. Such
exception or limitation, fully or licences can take the form ofpartially, to the availability ofcollective licensing agreements,
adequate licences, covering at
extended collective licensing
least the same uses as thoseagreements and licences that areallowed under the exception.
negotiated collectively such as
This mechanism would, for“blanket licences”, in order toexample, allow giving
avoid educational establishments
precedence to licences forhaving to negotiate individuallymaterials which are primarily
with rightholders. Such licenses
intended for the educational
should be affordable and cover atmarket. In order to avoid thatleast the same uses as thosesuch mechanism results inallowed under the exception. This
legal uncertainty ormechanism would, for example,
administrative burden forallow giving precedence toeducational establishments,
licences for materials which are
Member States adopting thisprimarily intended for theapproach should take concrete educational market, or formeasures to ensure thatteaching in educational
licensing schemes allowing
establishments or sheet music. In
digital uses of works or otherorder to avoid that such
subject-matter for the purpose
mechanism results in legalof illustration for teaching are
uncertainty or administrativeeasily available and thatburden for educational
educational establishments are establishments, Member Statesaware of the existence of such adopting this approach should
licensing schemes.
take concrete measures to ensurethat such licensing schemes
allowing digital uses of works orother subject-matter for the
purpose of illustration forteaching are easily available and35

of authors and performers.
This should allow Member
States to build on the existingarrangements concluded atnational level. In particular,
Member States could decide to
subject the application of the
exception or limitation, fully or
partially, to the availability ofadequate licences, covering atleast the same uses as thoseallowed under the exception.
ThisMember States could
notably use this mechanism
would, for example, allow
givingto give precedence tolicences for materials which
are primarily intended for theeducational market or for
sheet music. In order to avoid
that such mechanism results inlegal uncertainty or
administrative burden for
educational establishments,
Member States adopting thisapproach should take concretemeasures to ensure thatrightholders make thelicensing schemes allowing
digital uses of works or othersubject-matter for the purposeof illustration for teaching are

authors and performers. Thisshould allow Member States tobuild on the existingarrangements concluded atnational level. In particular,
Member States could decide to
subject the application of the
exception or limitation, fully or
partially, to the availability ofadequate licences covering atleast the same uses as thoseallowed under the exception.
Member States should ensurethat where licenses cover only
partially the uses allowed
under the exception, all theother uses remain subject tothe exception. Member States
could for example use thismechanism to give precedence
to licences for materials which
are primarily intended for theeducational market or for sheetmusic.

In order to avoid that thepossibility to subject theapplication of the exception to
the availability of licences
results in legal uncertainty or
administrative burden for
educational establishments,
Member States adopting thisthat educational establishments
are aware of the existence of suchlicensing schemes. Member
States should be able to provide
for systems to ensure that there isfair compensation forrightholders for uses under those
exceptions or limitations.
Member States should be
encouraged to use systems that
do not create an administrative
burden, such as systems thatprovide for one-off payments.
[See Council’s recital (17a) - row
36]

36

easily available and thatapproach should take concrete
educational establishments are measures to ensure that rightaware of the existence of such holders make the licensing
licensing schemes. Such
schemes allowing digital uses ofworks or other subject-matter formeasures may include thethe purpose of illustration fordevelopment of licensing
schemes tailored to the needs teaching are easily available andof educational establishments that educational establishments
are aware of the existence ofand the development ofsuch licensing schemes. Suchinformation tools aimed atensuring the visibility of thelicensing schemes measuresexisting licensing schemes.
may include the developmentof licensing schemes tailored toshould meet the needs ofeducational establishments.
and the development ofInformation tools aiming atensuring the visibility of theexisting licensing schemes
could also be developed.

Such schemes could, forexample, be based on collective
licensing or on extended
collective licensing in order toavoid educational
establishments having tonegotiate individually withrightholders. In order toguarantee legal certainty,
Member States should specify
under which conditions an
educational establishment may

36.

37.

(17 a) In order to guarantee
legal certainty when a Member
37(17a) Member States should
remain free to provide thatrightholders receive faircompensation for the digitaluses of their works or othersubject-matter under the
exception or limitation for
illustration for teachingprovided for in thisDirective. For the purposesof determining the possiblelevel of fair compensation,
due account should be taken,inter alia, of Member States'
educational objectives and of
the harm to rightholders.

use protected works or othersubject-matter under thatexception and, conversely,
when it should act under alicensing scheme.

GREEN(17a) Member States should
remain free to provide thatrightholders receive faircompensation for the digital usesof their works or other subjectmatter under the exception orlimitation for illustration forteaching provided for in thisDirective. For the purposes ofdetermining the possible level offair compensation, due accountshould be taken, inter alia, ofMember States' educational
objectives and of the harm torightholders. Member States
deciding to provide for faircompensation should encourage
the use of systems, which do notcreate administrative burden for
educational establishments.

[moved under recital 17 (row
35)]

38.

(18) An act of preservation
may require a reproduction of awork or other subject-matter inthe collection of a cultural
heritage institution andconsequently the authorisationof the relevant rightholders.
Cultural heritage institutions
are engaged in the preservationof their collections for future
generations. Digitaltechnologies offer new ways topreserve the heritage containedin those collections but theyalso create new challenges. Inview of these new challenges,
it is necessary to adapt thecurrent legal framework byproviding a mandatory
exception to the right ofState decides to subject theapplication of the exception to
the availability of adequate
licences, it is necessary to specify
under which conditions an
educational establishment may
use protected works or othersubject-matter under thatexception and, conversely, whenit should act under a licensing
scheme.
(18) An act of preservation of awork or other subject-matter inthe collection of a cultural
heritage institution may require a
reproduction of a work or othersubject-matter in the collection ofa cultural heritage institution andconsequently require theauthorisation of the relevant
rightholders. Cultural heritage
institutions are engaged in thepreservation of their collections
for future generations. Digitaltechnologies offer new ways topreserve the heritage contained inthose collections but they also
create new challenges. In view ofthese new challenges, it isnecessary to adapt the current
legal framework by providing a38(18) An act of preservation
may require a reproduction ofa work or other subject-matterin the collection of a cultural
heritage institution may
require a reproduction andconsequently the authorisationof the relevant rightholders.
Cultural heritage institutions
are engaged in the preservationof their collections for future
generations. Digitaltechnologies offer new ways topreserve the heritage containedin those collections but theyalso create new challenges. Inview of these new challenges,
it is necessary to adapt thecurrent legal framework byproviding a mandatory[the order of first and second
sentence was inverted](18) Cultural heritage
institutions are engaged in thepreservation of their collections
for future generations. An act ofpreservation of a work or othersubject-matter in the collectionof a cultural heritage institution
may require a reproduction of awork or other subject-matter inthe collection of a cultural
heritage institution andconsequently require theauthorisation of the relevant
rightholders. Cultural heritage
institutions are engaged in thepreservation of their collections
for future generations. Digitaltechnologies offer new ways to

39.

40.

(19) Different approaches in theMember States for acts ofreproduction for preservation by
cultural heritage institutions
hamper cross-border cooperation,and the sharing of means ofpreservation by cultural heritage
institutions in the internal market,
and the establishment of crossborder preservation networks in
the internal market organisations
that are engaged in preservation,
leading to an inefficient use ofresources. This can have anegative impact on thepreservation of cultural heritage.

reproduction in order to allow
those acts of preservation.

(19) Different approaches in
the Member States for acts ofpreservation by cultural
heritage institutions hampercross-border cooperation andthe sharing of means ofpreservation by cultural
heritage institutions in theinternal market, leading to an
inefficient use of resources.

(20) Member States should
therefore be required to provide
for an exception to permit cultural

mandatory exception to the rightof reproduction in order to allow
those acts of preservation by suchinstitutions.

(20) Member States should
therefore be required toprovide for an exception to39(20) Member States should
therefore be required toprovide for an exception to(19) Different approaches in
the Member States for acts ofpreservation by cultural
heritage institutions hampercross-border cooperation andthe sharing of means ofpreservation by cultural
heritagesuch institutions in theinternal market, leading to an
inefficient use of resources.

exception to the right ofreproduction in order to allow
those acts of preservation.

(20) Member States should
therefore be required to provide
for an exception to permit(19) Different approaches in theMember States for acts ofreproduction for preservation by
cultural heritage institutions
hamper cross-bordercooperation, and the sharing ofmeans of preservation by
cultural heritage institutions in
the internal market, and theestablishment of cross-borderpreservation networks in theinternal market by suchinstitutions leading to an
inefficient use of resources. Thiscan have a negative impact on
the preservation of cultural
heritage.

preserve the heritage containedin those collections but they also
create new challenges. In view ofthese new challenges, it isnecessary to adapt the current
legal framework by providing amandatory exception to the rightof reproduction in order to allow
those acts of preservation bysuch institutions.

permit cultural heritage
institutions to reproduce works
and other subject-matter
permanently in theircollections for preservation
purposes, for example toaddress technologicalobsolescence or the
degradation of original
supports. Such an exception
should allow for the making of
copies by the appropriate
preservation tool, means or
technology, in the required
number and at any point in thelife of a work or other subjectmatter to the extent required inorder to produce a copy forpreservation purposes only.

heritage institutions to reproduce
permit cultural heritage
works and other subject-matterinstitutions to reproduce works
permanently in their collections
and other subject-matterfor preservation purposes, forpermanently in their
example to address technologicalcollections for preservation
obsolescence or the degradation
purposes, for example toof original supports or to insure
address technologicalworks. Such an exception shouldobsolescence or theallow for the making of copies by degradation of original
the appropriate preservation tool,
supports. Such an exceptionmeans or technology, in any
should allow for the making offormat or medium, in the required copies by the appropriate
number, at any point in the life of preservation tool, means ora work or other subject-matter
technology, in the required
and to the extent required in order number and at any point in theto produce a copy for preservation life of a work or other subjectpurposes only. The archives ofmatter to the extent required inresearch organisations or public- order to produce a copy forpreservation purposes only.
service broadcastingorganisations should beActs of reproduction
considered cultural heritage
undertaken by cultural
institutions and therefore
heritage institutions forbeneficiaries of this exception.
purposes other than theMember States should, for thepreservation of works andpurpose of this exception, be able other subject-matter in their
to maintain provisions to treat
permanent collections should
publicly accessible galleries asremain subject to themuseums.
authorisation of rightholders,
unless permitted by otherexceptions or limitations
provided for by Union law.

40

cultural heritage institutions to
reproduce works and othersubject-matter permanently intheir collections for preservation
purposes, for example to address
technological obsolescence or
the degradation of original
supports or to insure works andother subject-matter. Such an
exception should allow for the
making of copies by theappropriate preservation tool,means or technology, in any
format or medium, in therequired number and at any pointin the life of a work or othersubject-matter and to the extent
required in order to produce a
copy for preservation purposes
only. Acts of reproduction
undertaken by cultural
heritage institutions forpurposes other than thepreservation of works andother subject-matter in theirpermanent collections should
remain subject to theauthorisation of rightholders,
unless permitted by otherexceptions or limitations
provided for by Union law.

41.

42.

(21) For the purposes of thisDirective, works and othersubject-matter should beconsidered to be permanently
in the collection of a cultural
heritage institution whencopies are owned or(21) For the purposes of thisDirective, works and othersubject-matter should beconsidered to be permanently inthe collection of a cultural
heritage institution when copies ofsuch works or other subject
41(21) For the purposes of thisDirective, works and othersubject-matter should beconsidered to be permanently
in the collection of a cultural
heritage institution whencopies are owned or(20a) Cultural heritage
institutions do notnecessarily have the technicalmeans or expertise toundertake the acts required
to preserve their collections
themselves, particularly inthe digital environment, andmay therefore have recourse
to the assistance of othercultural institutions andother third parties for that
purpose. Under thisexception, cultural heritage
institutions should therefore
be allowed to rely on third
parties acting on their behalf
and under their
responsibility, including
those that are based in otherMember States, for the
making of copies.

(21) For the purposes of thisDirective, works and othersubject-matter should beconsidered to be permanently inthe collection of a cultural
heritage institution when copies
of such works or other subjectmatter are owned or(20a) Cultural heritage
institutions do not necessarily
have the technical means orexpertise to undertake the acts
required to preserve theircollections themselves,particularly in the digital
environment, and may
therefore have recourse to theassistance of other cultural
institutions and other third
parties for that purpose. Under
this exception, cultural
heritage institutions should
therefore be allowed to rely on
third parties acting on theirbehalf and under their
responsibility, including thosethat are based in otherMember States, for the makingof copies.

permanently held by thecultural heritage institution, forexample as a result of atransfer of ownership or
licence agreements.

permanently held by suchinstitutions, for example as aresult of a transfer of ownershipor licence agreements, legal
deposit obligations orpermanent custodyarrangements.

[deleted and replaced withrecital 39a, row 87, relating to
Article 13(5), row 237A]

permanently held by thecultural heritage
institutionsuch institutions,for example as a result of atransfer of ownership or
licence agreements orpermanent custodyarrangements.

43.

(21a) Technologicaldevelopments have given rise to
information society services
enabling their users to upload
content and make it available indiverse forms and for various
purposes, including to illustrate
an idea, criticism, parody or
pastiche. Such content may
include short extracts of preexisting protected works or othersubject-matter that such users
might have altered, combined orotherwise transformed.

[deleted and replaced withrecital 39a, row 87, relating to
Article 13(5), row 237A]

matter are owned or permanently
held by the cultural heritage
institution, those organisations,for example as a result of atransfer of ownership or, licenceagreements, a legal deposit or along-term loan . Works or othersubject matter that cultural
heritage institutions accesstemporarily via a third-party
server are not considered as
being permanently in theircollections.

44.

(21b) Despite some overlap withexisting exceptions or limitations,such as the ones for quotation
42

and parody, not all content thatis uploaded or made available bya user that reasonably includes
extracts of protected works orother subject-matter is covered by
Article 5 of Directive
2001/29/EC. A situation of thistype creates legal uncertainty forboth users and rightholders. It istherefore necessary to provide a
new specific exception to permit
the legitimate uses of extracts ofpre-existing protected works orother subject-matter in content
that is uploaded or madeavailable by users. Where content
generated or made available by auser involves the short andproportionate use of a quotation
or of an extract of a protected
work or other subject-matter fora legitimate purpose, such use
should be protected by the
exception provided for in thisDirective. This exception should
only be applied in certain special
cases which do not conflict withnormal exploitation of the workor other subject-matter
concerned and do notunreasonably prejudice thelegitimate interests of the
43

45.

rightholder. For the purpose of
assessing such prejudice, it isessential that the degree oforiginality of the content
concerned, the length/extent of
the quotation or extract used, theprofessional nature of thecontent concerned or the degreeof economic harm be examined,
where relevant, while notprecluding the legitimate
enjoyment of the exception. This
exception should be without
prejudice to the moral rights of
the authors of the work or othersubject-matter.
(21c) Information society service
providers that fall within thescope of Article 13 of thisDirective should not be able toinvoke for their benefit the
exception for the use of extracts
from pre-existing works provided
for in this Directive, for the useof quotations or extracts fromprotected works or other subjectmatter in content that is
uploaded or made available byusers on those informationsociety services, to reduce thescope of their obligations under
44[deleted and replaced withrecital 39a, row 87, relating to
Article 13(5), row 237A]

45a.

Article 13 of this Directive.

45

The expiry of the term ofprotection of a work entails theentry of that work in the publicdomain and the expiry of therights that Union copyright law
provides to that work. In thefield of visual arts, thecirculation of faithful
reproductions of works in the
public domain contributes to theaccess to and promotion ofculture (or access to cultural
heritage). In the digital
environment, the protection ofthese reproductions throughcopyright or related rights isinconsistent with the expiry of
the copyright protection ofworks. In addition, differences
between the national copyrightlaws governing the protection ofthese reproductions give rise tolegal uncertainty and affect thecross-border dissemination ofworks of visual arts in the publicdomain. Therefore, it should beclarified that certain
reproductions of works of visualarts in the public domain should
not be protected by copyright or46.

(22) Cultural heritage
institutions should benefit froma clear framework for thedigitisation and dissemination,
including across borders, of
out-of-commerce works orother subject-matter. However,the particular characteristics ofthe collections of out-ofcommerce works mean thatobtaining the prior consent of
the individual rightholders may
be very difficult. This can bedue, for example, to the age of
the works or other subjectmatter, their limited
commercial value or the factthat they were never intended
for commercial use. It istherefore necessary to provide
for measures to facilitate thelicensing of rights in out-ofcommerce works that are in the(22) Cultural heritage institutions
should benefit from a clear
framework for the digitisation anddissemination, including acrossborders, of out-of-commerce
works or other subject-matter.
However, the particularcharacteristics of the collectionsof out-of-commerce works meanthat obtaining the prior consent of
the individual rightholders may bevery difficult. This can be due, forexample, to the age of the works
or other subject-matter, theirlimited commercial value or thefact that they were never intended
for commercial use or have neverbeen in commerce. It is therefore
necessary to provide for measures
to facilitate the licensing of rights
in use of out-of-commerce works
that are in the collections ofcultural heritage institutions and46(22) Cultural heritage
institutions should benefit froma clear framework for thedigitisation and dissemination,
including across borders, of
out-of-commerce works orother subject- matter. that areconsidered out of commerce
for the purposes of thisDirective. However, theparticular characteristics of thecollections of out-of-commerce
works, together with theamount of works involved inmass digitisation projects,
mean that obtaining the priorconsent of the individual
rightholders may be very
difficult. This can be due, forexample, to the age of theworks or other subject-matter,
their limited commercial valueor the fact that they were neverrelated rights. This should notprevent cultural heritage
institutions from selling
reproductions, such as postcards.

[text moved (unchanged) to newrow 66a](22) Cultural heritage
institutions should benefit from aclear framework for thedigitisation and dissemination,
including across borders, ofworks or other subject-matterthat are considered out ofcommerce for the purposes ofthis Directive. However, theparticular characteristics of thecollections of out-of-commerce
works, together with the amountof works and other subjectmatter involved in massdigitisation projects, mean thatobtaining the prior consent of theindividual rightholders may bevery difficult. This can be due,for example, to the age of theworks or other subject-matter,
their limited commercial value or
the fact that they were neverintended for commercial use or47.

collections of cultural heritage
institutions and thereby toallow the conclusion ofagreements with cross-bordereffect in the internal market.

thereby to allow the conclusion ofagreements with cross-bordereffect in the internal market.

(22a) Several Member States
have already adopted extended
collective licencing regimes, legal
mandates or legal presumptions
facilitating the licencing of outof-commerce works. Howeverconsidering the variety of works
and other subject-matter in thecollections of cultural heritage
institutions and the variance
between collective management
practices across Member Statesand sectors of cultural
production, such measures may
not provide a solution in allcases, for example, because there
is no practice of collective
management for a certain type of
47

intended for commercial use. It
is therefore necessary toprovide for measures tofacilitate the collective
licensing of rights in out-ofcommerce works that arepermanently in the collectionsof cultural heritage institutions
and thereby to allow theconclusion of agreements withcross-border effect in theinternal market.

that they have never been
exploited commercially. It istherefore necessary to provide
for measures to facilitate certain
uses of the collective licensingof rights in out-of-commerce
works and other subject-matterthat are permanently in thecollections of cultural heritage
institutions. , and thereby toallow the conclusion ofagreements with cross-bordereffect in the internal market.

(22a) Legal mechanisms should
therefore exist in all Member
States allowing for licences
issued by relevant andsufficiently representativecollective management
organisations to cultural
heritage institutions, forcertain uses of out-ofcommerce works and othersubject matter, to also apply tothe rights of rightholders thathave not mandated a
representative collective
management organisation inthat regard. It should be
legally possible for thoselicences to cover all territories

work or other subject matter. In
such particular instances, it istherefore necessary to allow
cultural heritage institutions tomake out-of-commerce works
held in their permanentcollection available online underan exception to copyright andrelated rights. While it isessential to harmonise the scopeof the new mandatory exception
in order to allow cross-borderuses of out-of-commerce works,
Member States should
nevertheless be allowed to use orcontinue to use extended
collective licencing arrangements
concluded with cultural heritage
institutions at national level for
categories of works that arepermanently in the collections ofcultural heritage institutions The
lack of agreement on theconditions of the licence should
not be interpreted as a lack ofavailability of licensing-based
solutions. Any uses under thisexception should be subject to thesame opt-out and publicity
requirements as uses authorisedby a licensing mechanism. In
order to ensure that the exception
48of the Union.

(22b) An adapted legal
framework applicable tocollective licensing may notprovide a solution for all thecases where cultural heritage
institutions encounter
difficulties in obtaining all thenecessary authorisations ofright holders for the use of outof-commerce works and othersubject-matter, for example,
because there is no practice ofcollective management for acertain type of works or othersubject-matter or because therelevant collective
management organisation is
not broadly representative forthe category of the rightholders and of the rights
concerned. In such particularinstances, it should be possible
for cultural heritage
institutions to make out-ofcommerce works and othersubject-matter that arepermanently in their collection
available online in all
territories of the Union undera harmonised exception orlimitation to copyright and48.

(23) Member States should,
within the framework provided
for in this Directive, haveflexibility in choosing thespecific type of mechanism
allowing for licences for outof-commerce works to extend
to the rights of rightholders
that are not represented by thecollective management
organisation, in accordance totheir legal traditions, practices
or circumstances. Suchmechanisms can include
extended collective licensing
and presumptions ofrepresentation.

only applies when certain
conditions are fulfilled and toprovide legal certainty, Member
States should determine, in
consultation with rightholders,collective management
organisations and cultural
heritage organisations, and at
appropriate intervals of time, forwhich sectors and which types ofworks appropriate licence-based
solutions are not available, inwhich case the exception should
apply.
(23) Member States should,
within the framework provided
for in this Directive, haveflexibility in choosing the specific
type of mechanism allowing forlicences for out-of-commerce
works to extend to the rights ofrightholders that are notrepresented by the relevantcollective management
organisation, in accordance towith their legal traditions,practices or circumstances. Suchmechanisms can include extended
collective licensing andpresumptions of representation.

49(23) Member States should,
within the framework provided
for in this Directive, haveflexibility in choosing thespecific type of mechanism,
such as extended collective
licensing or presumption ofrepresentation, allowing forlicences for out-of-commerce
works to extend to the rights ofrightholders that arehave notrepresented by themandated a
representative collective
management organisation, in
accordance towith their legal
traditions, practices or
circumstances. Such

related rights. It is importantthat uses under that exception
or limitation only take placewhen certain conditions,notably as regards theavailability of licensing
solutions, are fulfilled. The
lack of agreement on theconditions of the licence should
not be interpreted as a lack ofavailability of licensing-based
solutions.

(23) Member States should,
within the framework provided
for in this Directive, haveflexibility in choosing thespecific type of licensing
mechanism, such as extended
collective licensing or
presumptions of representation,that they put in place for theuse of out-of-commerce works
and other subject matter bycultural heritage institutions,in accordance with their legal
traditions, practices or
circumstances. Member Statesshould also have flexibility indetermining the requirements for49.

(24) For the purpose of
those licensing mechanisms, arigorous and well-functioning(24) For the purpose of thoselicensing mechanisms, a rigorous
and well-functioning collective
50(24) For the purpose of
those licensing mechanisms, arigorous and well-functioning

mechanisms can include
extended collective licensing
and presumptions ofrepresentationMember Statesshould also have flexibility indetermining therequirements for collective
management organisations tobe sufficiently representative,
as long as this is based on asignificant number ofrightholders in the relevant
type of works or othersubject-matter who havegiven a mandate allowing thelicensing of the relevant typeof use. Member States shouldbe free to establish specificrules applicable to cases
where more than one
collective management
organisation is representative
for the relevant works orother subject matter,
requiring for example joint
licences or an agreement
between the relevantorganisations.

(24) For the purpose of thoselicensing mechanisms, a rigorous
and well-functioning collective

collective management
organisations to be sufficiently
representative, as long as this isbased on a significant number ofrightholders in the relevant typeof works or other subject-matter
who have given a mandate
allowing the licensing of therelevant type of use. Member
States should be free to establish
specific rules applicable to cases
where more than one collective
management organisation isrepresentative for the relevant
works or other subject matter,
requiring for example joint
licences or an agreement
between the relevantorganisations.

collective management system
is important. That system
includes in particular rules ofgood governance, transparency
and reporting, as well as theregular, diligent and accurate
distribution and payment ofamounts due to individual
rightholders, as provided for by
Directive 2014/26/EU.
Additional appropriate
safeguards should be available
for all rightholders, who should
be given the opportunity to
exclude the application of suchmechanisms to their works orother subject-matter.
Conditions attached to thosemechanisms should not affecttheir practical relevance forcultural heritage institutions.

management system is importantand should be encouraged by theMember States. That system
includes in particular rules ofgood governance, transparency
and reporting, as well as theregular, diligent and accurate
distribution and payment ofamounts due to individual
rightholders, as provided for by
Directive 2014/26/EU. Additional
appropriate safeguards should beavailable for all rightholders, whoshould be given the opportunity to
exclude the application of suchlicensing mechanisms or of suchexceptions to their works or othersubject-matter. Conditions
attached to those mechanisms
should not affect their practicalrelevance for cultural heritage
institutions.

51

collective management system
is important. That system
includes in particular rules ofgood governance, transparency
and reporting, as well as theregular, diligent and accurate
distribution and payment ofamounts due to individual
rightholders, as provided for
by Directive 2014/26/EU.
Additional appropriate
safeguards should be available
for all rightholders, whoshould be given theopportunity to exclude theapplication of suchmechanisms in relation to all
their works or other subjectmatter or to all licences, or in
relation to particular works
or other subject-matter or toparticular licences, at any
time before or under theduration of the licence.
Conditions attached to thosemechanisms should not affecttheir practical relevance forcultural heritage institutions. It
is important that when arightholder excludes theapplication of suchmechanisms to one or moremanagement system isimportant. That system includes
in particular rules of good
governance, transparency andreporting, as well as the regular,
diligent and accurate distribution
and payment of amounts due toindividual rightholders, as
provided for by Directive
2014/26/EU.

(24a) Additional appropriate
safeguards should be available
for all rightholders, who should
be given the opportunity to
exclude the application ofthesuch licensing mechanisms
and the exception or limitation
introduced by this Directive
for the use of out-of-commerce
works in relation to all theirworks or other subject-matter orin relation to all licences or alluses under the exception orlimitation, or in relation toparticular works or other subjectmatter or in relation toparticular licences or uses underthe exception or limitation, at
any time before or under theduration of the licence or theuses under the exception orlimitation. Conditions attached

50.

52

(24a) This Directive does
not affect the possibility for
Member States to determine
the allocation of legalof their works or othersubject-matter, the informed
collective management
organisation does notcontinue to issue licences
covering the relevant uses
and any ongoing uses are
terminated within areasonable period. Suchexclusion by the rightholder
should not affect their claim
to remuneration for theactual use of the work orother subject-matter.

(24a) This Directive does notaffect the possibility for Member
States to determine the allocationof legal responsibility for theto those licensing mechanisms
should not affect their practicalrelevance for cultural heritage
institutions. It is important thatwhen a rightholder excludes theapplication of such mechanisms
or of such exception orlimitation to one or more of
their works or other subjectmatter, the informed collective
management organisation does
not continue to issue licences
covering the relevant uses andany ongoing uses are terminatedwithin a reasonable period, and,in the case they take place
under a collective licence, thatthe informed collective
management organisation does
not continue to issue licences
covering the relevant uses.
Such exclusion by therightholders should not affecttheir claims to remuneration for
the actual use of the work orother subject-matter under the
licence.

51.

(25) Considering the variety
of works and other subjectmatter in the collections ofcultural heritage institutions, it
is important that the licensing
mechanisms introduced by thisDirective are available and canbe used in practice for different
types of works and othersubject-matter, including
photographs, sound recordings
and audiovisual works. In
order to reflect the specificities
of different categories of works
and other subject-matter as
regards modes of publicationand distribution and to
facilitate the usability of thosemechanisms, specificrequirements and procedures
may have to be established by
Member States for the practical(25) Considering the variety ofworks and other subject-matter inthe collections of cultural heritage
institutions, it is important that thelicensing mechanisms introducedby this Directive are available andcan be used in practice fordifferent types of works and othersubject-matter, including
photographs, sound recordings
and audiovisual works. In order toreflect the specificities of different
categories of works and othersubject-matter as regards modesof publication and distribution andto facilitate the usability of thosemechanisms, the solutions on theuse of out-of-commerce works
introduced by this Directive,
specific requirements andprocedures may have to beestablished by Member States for53(25) Considering the variety
of works and other subjectmatter in the collections ofcultural heritage institutions, it
is important that the licensing
mechanisms introduced by thisDirective are available and canbe used in practice for different
types of works and othersubject-matter, including
photographs, software,phonograms, soundrecordings and audiovisual
works. and unique works ofart, irrespective of whether
they have ever beencommercially available.
Never-in-commerce works
may include posters, leaflets,
trench journals or amateur
audiovisual works, but also
unpublished works or other

responsibility for thecompliance of the licensing
and the use of out-ofcommerce works with theconditions set out in thisDirective and for thecompliance of the parties
with the terms of thoselicenses.

(25) Considering the variety
of works and other subjectmatter in the collections ofcultural heritage institutions, it isimportant that the licensing
mechanisms and the exception
or limitation introduced by thisDirective are available and canbe used in practice for different
types of works and other subjectmatter, including photographs,
software, phonograms,
audiovisual works and unique
works of art, irrespective ofwhether they have ever beencommercially available. Neverin-commerce works may include
posters, leaflets, trench journals
or amateur audiovisual works,
but also unpublished works orother subject-matter, without
prejudice to other applicable

compliance of the licensing andthe use of out-of-commerce
works with the conditions set out
in this Directive and for thecompliance of the parties withthe terms of those licenses.

application of those licensing
mechanisms. It is appropriatethat Member States consult
rightholders, users andcollective management
organisations when doing so.

the practical application of thoselicensing mechanisms. It isappropriate that Member States
consult rightholders, users
cultural heritage institutions andcollective management
organisations when doing so.

54

subject-matter, without
prejudice to other applicablelegal constraints, such as
national rules on moral
rights. When a work isavailable in any of itsdifferent versions, such as
subsequent editions ofliterary works and alternate
cuts of cinematographic
works, or in any of itsdifferent manifestations, suchas digital and printed
formats of the same work,
this work or other subjectmatter 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
the determination of the outof-commerce status of a workin a given language. In orderto reflect the specificities ofdifferent categories types ofworks and other subject-matteras regards modes ofpublication and distribution
and to facilitate the usability oflegal constraints, such as
national rules on moral rights.
When a work is available in anyof its different versions, such as
subsequent editions of literaryworks and alternate cuts ofcinematographic works, or in
any of its different
manifestations, such as digitaland printed formats of the same
work, this work or other subjectmatter should not be consideredout of commerce. Conversely,
the commercial availability ofadaptations, including otherlanguage versions or audiovisual
adaptations of a literary work,
should not preclude thedetermination of the out-ofcommerce status of a work in agiven language. In order toreflect the specificities ofdifferent types of works andother subject-matter as regards
modes of publication anddistribution and to facilitate theusability of those mechanisms,
specific requirements andprocedures may have to beestablished for the practicalapplication of those licensing
mechanisms, such as a time

52.

55

(25a) When determining
whether works and othersubject-matter are out ofcommerce, a reasonable
effort should be required toassess their availability to the
public in the customarychannels of commerce,taking into account thecharacteristics of theparticular work or set ofworks. Member Statesshould be free to determine
the allocation of
responsibilities for making
the reasonable effort. The
reasonable effort should not

those mechanisms, specificrequirements and procedures
may have to be established by
Member States for the practicalapplication of those licensing
mechanisms, such as a time
period which needs to havebeen elapsed since the firstcommercial availability of
the work. It is appropriate that
Member States consult
rightholders, users andcollective management
organisations when doing so.

(25a) When determining
whether works and other subjectmatter are out of commerce, areasonable effort should be
required to assess theiravailability to the public in thecustomary channels ofcommerce, taking into accountthe characteristics of theparticular work or set of works.
Member States should be free todetermine the allocation of
responsibilities for making thereasonable effort. The reasonable
effort should not have to berepeated over time but it should
also take account of any easily

period which needs to have been
elapsed since the firstcommercial availability of thework. It is appropriate that
Member States consult
rightholders, cultural heritage
institutionsusers and collective
management organisations when
doing so.

56

have to be repeated over time
but it should also takeaccount of any easily
accessible evidence of
upcoming availability ofworks in the customarychannels of commerce. A
work-by-work assessment
should only be required
when this is consideredreasonable in view of theavailability of relevant
information, the likelihood ofcommercial availability andthe expected transaction cost.
The verification ofavailability should normallytake place in the Member
State where the cultural
heritage institution isestablished, unlessverification across borders is
considered reasonable, forexample when there is easily
available information that aliterary work was firstpublished in a given language
version in another Member
State. In many cases the outof-commerce status of a setof works could bedetermined through aaccessible evidence of upcoming
availability of works in thecustomary channels ofcommerce. A work-by-workassessment should only berequired when this is consideredreasonable in view of theavailability of relevant
information, the likelihood ofcommercial availability and the
expected transaction cost. The
verification of availability should
normally take place in theMember State where the cultural
heritage institution is established,
unless verification across borders
is considered reasonable, forexample when there is easily
available information that aliterary work was first publishedin a given language version inanother Member State. In manycases the out-of-commerce statusof a set of works could bedetermined through a
proportionate mechanism, suchas sampling. The limited
availability of a work, such as its
availability in second-handshops, or the theoreticalpossibility to obtain a licence toa work should not be considered53.

(26) For reasons ofinternational comity, thelicensing mechanisms for thedigitisation and disseminationof out-of-commerce works
provided for in this Directive
should not apply to works orother subject-matter that are
first published or, in theabsence of publication, firstbroadcast in a third country or,in the case of cinematographic
or audiovisual works, to works
the producer of which has his
headquarters or habitualresidence in a third country.
Those mechanisms should also
not apply to works or othersubject-matter of third country
nationals except when they are(26) For reasons of internationalcomity, the licensing mechanisms
and the exception for thedigitisation and dissemination ofout-of-commerce works provided
for in this Directive should not
apply to works or other subjectmatter that are first published or,in the absence of publication, firstbroadcast in a third country or, inthe case of cinematographic oraudiovisual works, to works the
producer of which has his
headquarters or habitual residence
in a third country. Thosemechanisms should also not apply
to works or other subject-matterof third country nationals except
when they are first published or,in the absence of publication, first57(26) For reasons ofinternational comity, thelicensing mechanism and theexception or limitation
provided for in this Directive
for the digitisation anddissemination of out-ofcommerce works provided for inthis Directive should not apply tosets of out-of-commerce works
or other subject-matter when
there is available evidence topresume that they predominantly
consist of works or other subjectmatter of third countries, unlessthe concerned collective
management organisation is
sufficiently representative forthat third country, for example
via a representation agreement.

as availability to the public in the
proportionate mechanism,
customary channels ofsuch as sampling. The
limited availability of a work, commerce.
such as its availability insecond-hand shops, or thetheoretical possibility toobtain a licence to a work
should not be considered asavailability to the public in
the customary channels ofcommerce.

(26) For reasons ofinternational comity, thelicensing mechanisms for thedigitisation and disseminationof out-of-commerce works
provided for in this Directive
should not apply to works orother subject-matter that are
first published or, in theabsence of publication, firstbroadcast in a third country or,in the case of cinematographic
or audiovisual works, to works
the producer of which has his
headquarters or habitualresidence in a third country.
Those mechanisms should also
not apply to works or othersubject-matter of third country
nationals except when they arefirst published or, in theabsence of publication, firstbroadcast in the territory of a
Member State or, in the case ofcinematographic or audiovisual
works, to works of which the
producer's headquarters or
habitual residence is in a
Member State.

broadcast in the territory of a
Member State or, in the case ofcinematographic or audiovisual
works, to works of which the
producer's headquarters or
habitual residence is in a Member
State.

58

first published or, in theabsence of publication, firstbroadcast in the territory of a
Member State or, in the case ofcinematographic or audiovisual
works, to works of which the
producer's headquarters or
habitual residence is in a
Member Statesets of out-ofcommerce works or othersubject-matter when there isavailable evidence topresume that they
predominantly consist ofworks or other subjectmatter of third countries,
unless the concernedcollective management
organisation is sufficiently
representative for that third
country, for example via a
representation agreement.
This assessment can be basedon the evidence available
following the reasonable
effort to determine the outof-commerce status of theworks, without the need tosearch for further evidence.
A work-by-work assessmentof the origin of the out-ofcommerce works should onlyThis assessment can be based on
the evidence available following
the reasonable effort todetermine the out-of-commerce
status of the works, without theneed to search for further
evidence. A work-by-workassessment of the origin of theout-of-commerce works should
only be required insofar as it isalso required for the reasonable
effort to determine theircommercial availability.

54.

(27) As mass digitisation
projects can entail significant
investments by cultural
heritage institutions, any
licences granted under themechanisms provided for inthis Directive should notprevent them from generating
reasonable revenues in order tocover the costs of the licenceand the costs of digitising anddisseminating the works andother subject-matter coveredby the licence.

(27) As mass digitisation projects
can entail significant investments
by cultural heritage institutions,
any licences granted under themechanisms provided for in thisDirective should not prevent themfrom generating reasonable
revenues in order to cover
covering the costs of the licenceand the costs of digitising anddisseminating the works and othersubject-matter covered by thelicence.

59

be required insofar as it isalso required for thereasonable effort todetermine their commercial
availability.

(27) As mass The
contracting cultural heritage
institutions and collective
management organisations
should remain free to agree
on the territorial scope of thelicence, the licence fee andthe allowed uses. Uses
covered by such licenceshould not be for profit
making purpose, including
when copies are distributedby the cultural heritage
institution, such as in the caseof promotional material
about an exhibition. At thesame time, as the digitisation
projectsof the collections ofcultural heritage institutions
can entail significant
investments by cultural
heritage institutions, any
licences granted under themechanisms provided for inthis Directive should notprevent themcultural heritage(27) The contracting cultural
heritage institutions andcollective management
organisations should remain free
to agree on the territorial scopeof the licence, including thepossibility to cover all Member
States, the licence fee and theallowed uses. Uses covered bysuch licence should not be for
profit making purpose, including
when copies are distributed by
the cultural heritage institution,such as in the case ofpromotional material about an
exhibition. At the same time, as
the digitisation of the collectionsof cultural heritage institutions
can entail significant
investments, any licences
granted under the mechanisms
provided for in this Directive
should not prevent cultural
heritage institutions fromgenerating reasonable revenues
for the exclusive purposes of55.

(28) Information regarding
the future and ongoing use ofout-of-commerce works andother subject-matter by cultural
heritage institutions on thebasis of the licensing
mechanisms provided for inthis Directive and thearrangements in place for all
rightholders to exclude theapplication of licences to theirworks or other subject-mattershould be adequately
publicised. This is particularly
important when uses take placeacross borders in the internalmarket. It is therefore
appropriate to make provision
for the creation of a single
publicly accessible online
portal for the Union to makesuch information available tothe public for a reasonable(28) Information regarding the(28) Information regarding
future and ongoing use of out-ofthe future and ongoing use ofcommerce works and other
out-of-commerce works andsubject-matter by cultural heritage other subject-matter by cultural
institutions on the basis of theheritage institutions on thelicensing mechanisms or of thebasis of the licensing
exception provided for in thismechanisms provided for in
Directive and the arrangements in this Directive and theplace for all rightholders toarrangements in place for all
exclude the application of licences rightholders to exclude theor of the exception to their works application of licences to theiror other subject-matter should beworks or other subject-matter
adequately publicised. This isshould be adequately
particularly important when uses
publicised. both before atake place across borders in thelicence is granted and during
internal market. It is therefore
the operation of the licenceappropriate to make provision for as appropriate. This is
the creation of a single publicly
particularly important whenaccessible online portal for theuses take place across borders
Union to make such informationin the internal market. It isavailable to the public for atherefore appropriate to makereasonable period of time before
provision for the creation of athe cross-border use takes place.
single publicly accessible

institutions from generating
reasonable revenues in order tocoverfor the purposes ofcovering the costs of thelicence and the costs ofdigitising and disseminating
the works and other subjectmatter covered by the licence.

(28) Information regarding thefuture and ongoing use of out-ofcommerce works and othersubject-matter by cultural
heritage institutions on the basisof the licensing mechanisms
provided for in this Directive andthe arrangements in place for all
rightholders to exclude theapplication of licences or of the
exception or limitation to theirworks or other subject-mattershould be adequately publicised
both before a licence is grantedand during the operation of thelicencethe use under a licenceor the exception or limitation,
as appropriate. This isparticularly important when uses
take place across borders in theinternal market. It is therefore
appropriate to make provision
for the creation of a single

covering the costs of the licenceand the costs of digitising anddisseminating the works andother subject-matter covered by
the licence.

60

11

period of time before the crossborder use takes place. Under
Regulation (EU) No 386/2012of the European Parliamentand of the Council11, theEuropean Union Intellectual
Property Office is entrustedwith certain tasks andactivities, financed by making
use of its own budgetarymeasures, aiming at facilitating
and supporting the activities ofnational authorities, the private
sector and Union institutions in
the fight against, including theprevention of, infringement ofintellectual property rights. It istherefore appropriate to rely onthat Office to establish andmanage the European portal
making such information
available.

Under Regulation (EU) No
386/2012 of the European
Parliament and of the Council11,
the European Union Intellectual
Property Office is entrusted withcertain tasks and activities,
financed by making use of its own
budgetary measures, aiming at
facilitating and supporting theactivities 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 Officeto establish and manage theEuropean portal making suchinformation available.

online portal for the Union to
make such information
available to the public for areasonable period of time
before the cross-border use
takes place. This portal
should facilitate thepossibility for rightholders to
exclude the application oflicences to their works orother subject-matter. Under
Regulation (EU) No 386/2012of the European Parliamentand of the Council11, theEuropean Union Intellectual
Property Office is entrustedwith certain tasks andactivities, financed by making
use of its own budgetarymeasuresmeans, aiming at
facilitating and supporting theactivities of national
authorities, the private sectorand Union institutions in thefight against, including theprevention of, infringement ofintellectual property rights. It
is therefore appropriate to rely

publicly accessible online portal
for the Union to make suchinformation available to the
public for a reasonable period oftime before the use takes place.
This portal should facilitate thepossibility for rightholders to
exclude the application oflicences to their works or othersubject-matter. Under Regulation(EU) No 386/2012 of theEuropean Parliament and of theCouncil11, the European Union
Intellectual Property Office isentrusted with certain tasks andactivities, financed by making
use of its own budgetary means,aiming at facilitating andsupporting the activities ofnational authorities, the private
sector and Union institutions in
the fight against, including theprevention of, infringement ofintellectual property rights. It istherefore appropriate to rely onthat Office to establish andmanage the European portal
making such information

Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on entrusting the Office for Harmonization in theInternal Market (Trade Marks and Designs) with tasks related to the enforcement of intellectual property rights, including the assembling of public andprivate-sector representatives as a European Observatory on Infringements of Intellectual Property Rights (OJ L 129, 16.5.2012, p. 1–6).
61

62

on that Office to establish andmanage the European portal
making such information
available. In addition to
making the information
available through the portal,
further appropriate publicity
measures may need to betaken on a case-by-case basis
in order to increase theawareness of affectedrightholders, for example
through the use of additional
channels of communication
to reach a wider public. The
necessity, the nature and thegeographic scope of theadditional publicity measures
should depend on thecharacteristics of therelevant out-of-commerce
works or other subjectmatter, the terms of thelicences and the existing
practices in Member States.
Publicity measures should be
effective without the need to
inform each rightholder
individually.

available. In addition to making
the information available
through the portal, further
appropriate publicity measures
may need to be taken on a caseby-case basis in order to increase
the awareness of affectedrightholders, for example
through the use of additional
channels of communication toreach a wider public. The
necessity, the nature and thegeographic scope of theadditional publicity measures
should depend on thecharacteristics of the relevant
out-of-commerce works or othersubject-matter, the terms of thelicences or the type of use
under the exception orlimitation, and the existing
practices in Member States.
Publicity measures should be
effective without the need to
inform each rightholder
individually.

(-28a) In order to ensure thatthe licensing mechanisms
established by this Directive
for out-of-commerce works are

56.

63

(28a) The measuresprovided for in this Directive
to facilitate the collective
licensing of rights in out-ofcommerce works or othersubject-matter that arepermanently in thecollections of cultural
heritage institutions should
be without prejudice to theuse of such works or othersubject-matter under
exceptions or limitations
provided for in Union law or
under other licences with anextended effect, where suchlicensing is not based on theout-of-commerce status of

relevant and function properly,that rightholders areadequately protected, thatlicences are properly
publicised and that legal
clarity is ensured with regard
to the representativeness ofcollective management
organisations and thecategorisation of works,
Member States should foster
sector-specific stakeholder
dialogue.

(28a) The measures provided
for in this Directive to facilitate
the collective licensing of rights
in out-of-commerce works orother subject-matter that arepermanently in the collections ofcultural heritage institutions
should be without prejudice tothe use of such works or othersubject-matter under exceptions
or limitations provided for inUnion law or under otherlicences with an extended effect,
where such licensing is not basedon the out-of-commerce status of
the covered works or othersubject matter. These measures
should also be without prejudice

57.

64

(28b) Mechanisms ofcollective licensing with anextended effect allow acollective management
organisation to offer licences
as a collective licensing bodyon behalf of rightholders
irrespective of whether they
have authorised theorganisation to do so.
Systems built on suchmechanisms, such as
extended collective licensing,legal mandates orpresumptions ofrepresentation, are a wellestablished practice inseveral Member States andmay be used in different
areas. A functioning

the covered works or othersubject matter. These
measures should also be
without prejudice to national
mechanisms for the use ofout of commerce works
based on licences between
collective management
organisation and users otherthan cultural heritage
institutions.

(28b) Mechanisms of collective
licensing with an extended effectallow a collective management
organisation to offer licences asa collective licensing body onbehalf of rightholders
irrespective of whether they haveauthorised the organisation to doso. Systems built on suchmechanisms, such as extended
collective licensing, legal
mandates or presumptions ofrepresentation, are a wellestablished practice in several
Member States and may be usedin different areas. A functioning
copyright framework that works
for all parties requires theavailability of these
proportionate, legal mechanisms

to national mechanisms for theuse of out of commerce works
based on licences between
collective management
organisation and users other thancultural heritage institutions.

58.

65

(28c) In the case of someuses, together with theusually large amount ofworks involved, thetransaction cost of individual
rights clearance with every
concerned rightholder isprohibitively high andwithout effective collective
licensing mechanisms all the

copyright framework thatworks for all parties requires
the availability of these
proportionate, legal
mechanisms for the licensingof works. Member Statesshould therefore be able torely on solutions, allowing
relevant licensing
organisations, which are
owned or controlled by theirrightholder members (orentities representing
rightholders) or organised ona not for profit basis, to offer
licences covering potentiallylarge volumes of works orother subject-matter forcertain types of use, anddistribute the revenue
received to rightholders.

(28c) In the case of some uses,
together with the usually large
amount of works involved, thetransaction cost of individual
rights clearance with every
concerned rightholder isprohibitively high and without
effective collective licensing
mechanisms all the required
transactions in these areas tofor the licensing of works.
Member States should therefore
be able to rely on solutions,allowing relevant collective
management licensing
organisations , which are owned
or controlled by their rightholder
members (or entities
representing rightholders) ororganised on a not for profit
basis, to offer licences covering
potentially large volumes ofworks or other subject-matter forcertain types of use, anddistribute the revenue received torightholders, in accordance with
Directive 2014/26/EU.

59.

66

(28d) Given the increasing
importance of the ability tooffer flexible licensing
solutions in the digital age,and the increasing use ofsuch schemes in Member

required transactions inthese areas to enable the useof these works or othersubject matter are unlikely totake place. Extended
collective licensing andsimilar mechanisms havemade it possible to conclude
agreements in areas affectedby this market failure wheretraditional collective
licensing does not provide an
exhaustive solution forcovering all works and othersubject-matter to be used.
These mechanisms serve as acomplement to collective
management based on
individual mandates, byproviding full legal certainty
to users. At the same time,they provide a further
opportunity to right holders
to benefit from the legitimate
use of their works.

(28d) Given the increasing
importance of the ability to offer
flexible licensing solutions in thedigital age, and the increasinguse of such schemes, in Member
States, should be ablellowed toenable the use of these works orother subject matter are unlikely
to take place. Extended
collective licensing by collective
management organisations andsimilar mechanisms have made it
may make it possible toconclude agreements in theseareas affected by this market
failure where traditional
collective licensing based on an
authorisation by rightholders
does not provide an exhaustive
solution for covering all works
and other subject-matter to be
used. These mechanisms serve as
a complement to collective
management based on individual
mandatesauthorisation by
rightholders, by providing fulllegal certainty to users in certain
cases. At the same time, they
provide an further opportunity torights holders to benefit from thelegitimate use of their works.

67States, it is beneficial tofurther clarify in Union law
the status of licensing
mechanisms allowing
collective management
organisations to conclude
licences, on a voluntary basis,
irrespective of whether all
rightholders have authorised
the organisation to do so.
Member States should havethe ability to maintain andintroduce such schemes inaccordance with their legal
traditions, practices or
circumstances, subject to thesafeguards provided for inthis Directive and in fullrespect of Union law andtheir international
obligations related tocopyright. These schemes
would only have effect in the
territory of the Member
State concerned, unlessotherwise provided for inUnion law. Member Statesshould have flexibility inchoosing the specific type of
mechanism allowing licences
for works or other subjectmatter to extend to the rights

provide it is beneficial to further
clarify in Union law the status offor licensing mechanisms whichallowing permit collective
management organisations toconclude licences, on a voluntarybasis, irrespective of whether all
rightholders have authorised theorganisation to do so. Member
States should have the ability tomaintain and introduce such
schemes in accordance with theirnationallegal traditions,practices or circumstances,subject to the safeguards
provided for in this Directive andin full respect of Union law andtheir international obligations of
the Union. related to copyright.
These schemes would only haveeffect in the territory of theMember State concerned, unlessotherwise provided for in Union
law. Member States should haveflexibility in choosing thespecific type of mechanism
allowing licences for works orother subject-matter to extend to
the rights of rightholders thathave not authorised theorganisation that concludes theagreement, provided that this is

60.

68

(28e) It is important thatsuch mechanisms are only
applied in well-defined areasof uses, where obtainingof rightholders that have notauthorised the organisationthat concludes theagreement, as long as it
guarantees sufficient
protection of the nonmember rightholders. Suchmechanisms may include
extended collective licensing,legal mandate andpresumptions ofrepresentation. The
provisions of this Directive
concerning collective
licensing should not affectexisting possibilities ofMember States to apply
mandatory collective
management or othercollective licensing
mechanisms with anextended effect, such as theone included in Article 3 ofDirective 93/83/EEC.

(28e) It is important that suchmechanisms are only applied inwell-defined areas of uses, whereobtaining authorisations fromin compliance with Union law,
including the rules oncollective rights management
provided in Directive
2014/26/EU. In particular,such schemes should also
ensure and thatas long as it
guarantees sufficient protectionof the Article 7 of Directive
2014/26/EUn applies to nonmember rightholders that are
not members of theorganisation that concludes theagreement. Such mechanisms
may include extended collective
licensing, legal mandate andpresumptions of representation.
The provisions of this Directive
concerning extended collective
licensing should not affectexisting possibilities of Member
States to apply mandatory
collective management or othercollective licensing mechanisms
with an extended effect, such as
the one included in Article 3 ofDirective 93/83/EEC.

69

rightholders on an individual
authorisations fromrightholders on an individual basis is typically onerous andbasis is typically onerous and impractical to a degree thatmakes the required licensing
impractical to a degree thatmakes the required licensing transaction, i.e. a licence thattransaction, i.e. a licence that covers all the involved
rightholders unlikely to occur
covers all the involved
due to the nature of the use or ofrightholders unlikely tooccur due to the nature of the the types of works concerned.
use or of the types of works
Such mechanisms should beconcerned. It is equallybased on objective, transparent
important that the licensed
and non-discriminatory
use neither affects adversely
criteria as regards thethe economic value of thetreatment of rightholders
relevant rights nor deprives
including non-members. In
rightholders of significant
particular the mere fact thatcommercial benefits.
the affected rightholders are
Moreover, Member States
not nationals or residents of or
should ensure that
established in the Member
appropriate safeguards are
State of the user who is seeking
in place to protect thea licence, should not be on its
legitimate interests ofown merits a reason torightholders that are notconsidermake the clearance ofrepresented by therights so onerous andorganisation offering theimpractical to justify the use ofsuch mechanisms. It is equallylicence.
important that the licensed useneither affects adversely the
economic value of the relevant
rights nor deprives rightholdersof significant commercial
benefits. Moreover, Member

61.

70

(28f) Specifically, to justify
the extended effect of themechanisms, theorganisation should be, on
the basis of authorisations
from rightholders,sufficiently representative ofthe types of works or othersubject-matter and of therights which are the subjectof the licence. To ensure legal
certainty and confidence inthe mechanisms Member
States may determine theallocation of legal
responsibility for uses
authorised by the licenceagreement. Equal treatment
should be guaranteed to allrightholders whose works
are exploited under the
licence as regards, notably,
access to information on theStates should ensure thatappropriate safeguards are inplace to protect the legitimate
interests of rightholders that are
not represented by theorganisation offering the licencewhichthat apply in a nondiscriminatory manner.

(28f) Specifically, to justify theextended effect of themechanisms, the organisation
should be, on the basis ofauthorisations from rightholders,sufficiently representative of thetypes of works or other subjectmatter and of the rights which
are the subject of the licence.
Member States should
determine the requirements
for those organisations to be
sufficiently representative inaccordance with Directive
2014/26/EU, taking into
account the category of rights
managed by the collective
rights management
organisation, the ability of theorganisation to manage therights effectively and thecreative sector in which it
operates and also whether the

71

licensing and the distribution organisation covers aof remuneration. Publicity
significant number ofmeasures should be effective rightholders in the relevant
throughout the duration oftype of works or other subjectthe licence without the needmatter who have given a
to inform each rightholder
mandate allowing the licensing
individually. In order toof the relevant type of use, andensure that rightholders can in accordance with Directive
2014/26/EU. To ensure legal
easily retain control of theirworks, and prevent any uses certainty and confidence in theof their works that would be mechanisms Member States may
prejudicial to their interests, determine the allocation of legal
responsibility for uses authorised
rightholders must be givenby the licence agreement. Equal
an effective opportunity totreatment should be guaranteed
exclude the application ofto all rightholders whose works
such mechanisms to theirare exploited under the licence asworks or other subjectmatter for all uses and works regards, including in particular
as regards notably, access toor other subject-matter, or
information on the licensing andfor specific uses and works
the distribution of remuneration.
or other subject-matter. In
such cases, any ongoing uses Publicity measures should beshould be terminated within effective throughout the durationa reasonable period. Member of the licence without imposing
States may also decide that
disproportionate
additional measures areadministrative burdens on
appropriate to protect
users, collective management
rightholders.
organisations and rightholders
and without the need to inform
each rightholder individually. In
order to ensure that rightholders
can easily retain regain control

72

of their works, and prevent any
uses of their works that would be
prejudicial to their interests,
rightholders must be given an
effective opportunity to exclude
the application of suchmechanisms to their works orother subject-matter for all uses
and works or other subjectmatter, or for specific uses andworks or other subject-matter, at
any time including before theconclusion of a licence and or
under the durationduring theterm of the licence. In suchcases, any ongoing uses shouldbe terminated within areasonable period. Suchexclusion by the rightholders
should not affect their claims
to receive remuneration for theactual use of the work or othersubject-matter under the
licence. Member States may alsodecide that additional measures
are appropriate to protect
rightholders. This could
include, for example,
encouraging the exchange of
information among collective
management organisations andother interested parties across62.

(28h) Given the different(28g) Member States should
ensure that the purpose andscope of any licence granted
as a result of thesemechanisms, as well as thepossible users, should always
be carefully and clearly
defined in national legislationor, if the underlying
legislation is a generalprovision, in the licensing
practices applied as a resultof such general provisions, orin the licences granted. The
ability to operate a licence
under these mechanisms
should also be limited toorganisations which areeither owned or controlled bytheir right holder members
or which operate on a not for
profit basis, regulated bynational law implementing
Directive 2014/26/EU.

(28h) Given the different(28g) Member States should
ensure that the purpose andscope of any licence granted as aresult of these mechanisms, aswell as the possible users, should
always be carefully and clearly
defined in national legislation or,if the underlying legislation is a
general provision, in thelicensing practices applied as aresult of such general provisions,or in the licences granted. The
ability to operate a licence underthese mechanisms should also be
limited to collective rights
management organisations
which are either owned orcontrolled by their right holder
members or which operate on a
not for profit basis, regulated bynational law implementing
which are subject to nationallaw implementing Directive
2014/26/EU.

the Union to raise awarenessabout these mechanisms andthe rightholders' possibility to
exclude their works or othersubject-matter from them.

63.
73

74

traditions and experienceswith extended collective
licensing across Member
States and their applicability
to rightholders irrespectiveof their nationality or their
Member State of residence, it
is important to ensuretransparency and dialogue atUnion level about thepractical functioning of thesemechanisms, including as
regards the effectiveness of
safeguards for rightholders,
their usability and thepotential need to lay down
rules to give such schemes
cross-border effect within theinternal market. To ensuretransparency, information
about the use of suchmechanisms under thisDirective should be regularly
published by theCommission. Member Statesthat have introduced suchmechanisms should therefore
inform the Commission
about relevant national
legislation and its applicationin practice, including scopes
and types of licensing

traditions and experiences withextended collective licensing
across Member States and theirapplicability to rightholders
irrespective of their nationalityor their Member State ofresidence, it is important toensure transparency and dialogue
at Union level about the practical
functioning of thesemechanisms, including as
regards the effectiveness of
safeguards for rightholders, theirusability, the effect onrightsholders who are notmembers and/or who arenationals of, or resident in,another Member State, theimpact on the cross borderprovision of services, andincluding the potential need tolay down rules to give such
schemes cross-border effectwithin the internal market. To
ensure transparency, information
about the use of suchmechanisms under this Directive
should be regularly published by
the Commission. Member Statesthat have introduced suchmechanisms should therefore
inform the Commission about

64.

(28a) In order to ensure that thelicensing mechanisms
established for out-of-commerce
works are relevant and function
properly, that rightholders areadequately protected under those75

relevant national legislation andintroduced on the basis of
its application in practice,general legislation, the scaleof licensing and the collective including scopes and types oflicensing introduced on the basis
management organisationsof general legislation, the scale
involved. Such informationof licensing and the collective
should be discussed withMember States in the contact management organisations
involved. Such informationcommittee referred to inshould be discussed with
Article 12(3) of Directive
2001/29)
On/EC. The
Member States in the contact
Commission should publish a committee referred to in Article
report by 31 December 2020 12(3) of Directive 2001/29)
On/EC. The Commission
on the use of suchmechanisms in the Union and should publish a report by 31
their impact on licensing and December 202010 April 2021 on
the use of such mechanisms inrightholders.
the Union and their impact onlicensing and rightholders, on
the dissemination of culturalcontent and on the crossborder provision of services in
the area of collective
management of copyright andrelated rights, andcompetition.

[EP proposal covered as recital(-28a) in row 55]

65.

(29) On-demand services
have the potential to play adecisive role in thedissemination of European
works across the European
Union. However, agreementson the online exploitation ofsuch works may facedifficulties related to thelicensing of rights. Such issues
may, for instance, appear when
the holder of the rights for agiven territory is not interested
in the online exploitation of thework or where there are issues
linked to the windows of
exploitation.

mechanisms, that licences areproperly publicised and that legal
clarity is ensured with regard to
the representativeness ofcollective management
organisations and thecategorisation of works, Member
States should foster sectorspecific stakeholder dialogue.
(29) On-demand services havethe potential to play a decisiverole in the dissemination ofEuropean works across theEuropean Union. However,agreements on the online
exploitation of such works may
face difficulties related to thelicensing of rights. Such issues
may, for instance, appear when
the holder of the rights for a given
territory is not interested in the
online exploitation of the work or
where there are issues linked to
the windows of exploitation.

76(29) Video-on-demand
services have the potential toplay a decisive role in thedissemination of European
audiovisual works across theEuropean Union. However,agreements the availability of
those works, in particular
European works, on videoon-demand services remains
limited. Agreements on the
online exploitation of suchworks may be difficult toconclude due to issues facedifficulties related to thelicensing of rights. Such issues
may, for instance, appear when
the holder of the rights for agiven territory is not interested
in the has low economic
incentive to exploit a work
online exploitation of the work(29) Video-on-demand
services have the potential toplay a decisive role in thedissemination of audiovisual
works across the European
Union. However, the availabilityof those works, in particular
European works, on video-ondemand services remains limited.
Agreements on the online
exploitation of such works may
be difficult to conclude due toissues related to the licensing ofrights. Such issues may, forinstance, appear when the holderof the rights for a given territory
has low economic incentive to
exploit a work online and does
not license or holds back theonline rights, which can lead tothe unavailability of audiovisual
works on video-on-demand

66.

(30) To facilitate thelicensing of rights inaudiovisual works to video-ondemand platforms, thisDirective requires Member
States to set up a negotiation
mechanism allowing parties
willing to conclude anagreement to rely on theassistance of an impartial body.
The body should meet with theparties and help with thenegotiations by providing
professional and external
advice. Against thatbackground, Member Statesshould decide on theconditions of the functioningof the negotiation mechanism,
including the timing andduration of the assistance tonegotiations and the bearing of
the costs. Member States(30) To facilitate the licensing ofrights in audiovisual works tovideo-on-demand platforms, thisDirective requires Member States
to should set up a negotiation
mechanism, managed by anexisting or newly establishednational body, allowing parties
willing to conclude an agreement
to rely on the assistance of an
impartial body. The participationin this negotiation mechanism
and the subsequent conclusion ofagreements should be voluntary.
Where a negotiation involves
parties from different Member
States, those parties should agree
beforehand on the competent
Member State, should they decideto rely on the negotiation
mechanism. The body shouldmeet with the parties and help
with the negotiations by providing
77(30) To facilitate thelicensing of rights inaudiovisual works to video-ondemand platformsservices, thisDirective requires Member
States to set upprovide for anegotiation mechanism
allowing parties willing toconclude an agreement to relyon the assistance of an
impartial body. The body or of
one or more mediators. For
that purpose, Member States
may either create a new bodyor rely on an existing one
that fulfils the conditions
established by this Directive.
Member States may
designate one or morecompetent bodies ormediators. The body or the
mediators should meet withthe parties and help with theor where there are issues anddoes not license or holds
back the online rights, which
can lead to the unavailabilityof audiovisual works onvideo-on-demand services.
Other issues may be linked to
the windows of exploitation.

(30) To facilitate the licensingof rights in audiovisual works tovideo-on-demand services, thisDirective requires Member
States to provide for anegotiation mechanism allowing
parties willing to conclude anagreement to rely on theassistance of an impartial bodyor of one or more mediators. For
that purpose, Member States
may either create a new body orrely on an existing one that
fulfils the conditions establishedby this Directive. Member States
may designate one or morecompetent bodies or mediators.
The body or the mediators
should meet with the parties andhelp with the negotiations byproviding professional,
impartial and external advice.
Where a negotiation involves

services. Other issues may belinked to the windows of
exploitation.

66A

should ensure thatadministrative and financial
burdens remain proportionate
to guarantee the efficiency ofthe negotiation forum.

professional, impartial andexternal advice. Against thatbackground, Member Statesshould decide on the conditions of
the functioning of the negotiation
mechanism, including the timing
and duration of the assistance tonegotiations and the bearing
division of the any costs arising,and the composition of suchbodies. Member States should
ensure that administrative andfinancial burdens remain
proportionate to guarantee theefficiency of the negotiation
forum.

78

negotiations by providing
professional and external
advice. The body or the
mediators could meet withthe parties to facilitate thestart of negotiations or in thecourse of the negotiations tofacilitate the conclusion of anagreement. The use of andthe participation in thenegotiation mechanism
should remain voluntary andshould not affect the parties'
contractual freedom. Againstthat background, Member
States should be free to decideon the conditions oftheconcrete functioning of thenegotiation mechanism,
including the timing andduration of the assistance tonegotiations and the bearing of
the costs. Member Statesshould ensure thatadministrative and financial
burdens remain proportionate
to guarantee the efficiency ofthe negotiation
forummechanism.

parties from different Member
States, those parties should
agree beforehand on thecompetent Member State,should they decide to rely on
the negotiation mechanism.
The body or the mediators could
meet with the parties to facilitate
the start of negotiations or in thecourse of the negotiations tofacilitate the conclusion of anagreement. The participation inthis negotiation mechanism
and the subsequent conclusionof agreements should bevoluntary and should not affectthe parties' contractual freedom.
Against that background,
Member States should be free todecide on the concrete
functioning of the negotiation
mechanism, including the timing
and duration of the assistance tonegotiations and the bearing of
the costs. Member States should
ensure that administrative andfinancial burdens remain
proportionate to guarantee theefficiency of the negotiation
mechanism.

(30a) The expiry of the term of79

protection of a work entails theentry of that work in the publicdomain and the expiry of therights that Union copyright law
provides to that work. In thefield of visual arts, thecirculation of faithful
reproductions of works in the
public domain contributes to theaccess to and promotion ofculture (or access to cultural
heritage). In the digital
environment, the protection ofthese reproductions throughcopyright or related rights isinconsistent with the expiry of
the copyright protection ofworks. In addition, differences
between the national copyrightlaws governing the protection ofthese reproductions give rise tolegal uncertainty and affect thecross-border dissemination ofworks of visual arts in the
public domain. Therefore, it
should be clarified that certain
reproductions of works of visualarts in the public domain should
not be protected by copyright or
related rights. This should notprevent cultural heritage
institutions from selling67.

(30a) The preservation of theUnion’s heritage is of the utmost
importance and should be
strengthened for the benefit of
future generations. This shouldbe achieved notably through theprotection of published heritage.
To this end, a Union legal deposit
should be created in order toensure that publications
concerning the Union, such as
Union law, Union history andintegration, Union policy andUnion democracy, institutional
and parliamentary affairs, andpolitics, and, thereby, theUnion’s intellectual record andfuture published heritage, arecollected systematically. Not only
should such heritage be
preserved through the creation ofa Union archive for publications
dealing with Union-related
matters, but it should also bemade available to Union citizens
and future generations. The
80

reproductions, such as
postcards.

[text related to Article 10b on
public domain moved here fromrow 45a (without changes)][deleted]

68.

(31) A free and pluralistpress is essential to ensure
quality journalism and citizens'
access to information. It
provides a fundamental
contribution to public debate
and the proper functioning of ademocratic society. In thetransition from print to digital,

European Parliament Library, as
the Library of the only Union
institution directly representing
Union citizens, should bedesignated as the Union
depository library. In order not tocreate an excessive burden on
publishers, printers andimporters, only electronic
publications, such as e-books, ejournals and e-magazines should
be deposited in the European
Parliament Library, whichshould make available forreaders publications covered by
the Union legal deposit at theEuropean Parliament Library forthe purpose of research or study
and under the control of theEuropean Parliament Library.
Such publications should not bemade available online externally.
(31) A free and pluralist press isessential to ensure quality
journalism and citizens' access to
information. It provides afundamental contribution to
public debate and the proper
functioning of a democraticsociety. The increasing
imbalance between powerful81(31) A free and pluralistpress is essential to ensure
quality journalism and citizens'
access to information. It
provides a fundamental
contribution to public debate
and the proper functioning of ademocratic society. In thetransition from print to digital,(31) A free and pluralist press
is essential to ensure quality
journalism and citizens' access to
information. It provides afundamental contribution to
public debate and the proper
functioning of a democraticsociety. The wide availability ofpress publications online has
given rise to the emergence of69.

(32) The organisational andfinancial contribution of

publishers of press publications platforms and press publishers,
are facing problems inwhich can also be news agencies,
licensing the online use of their has already led to a remarkablepublications and recouping
regression of the media
their investments. In thelandscape on a regional level. In
absence of recognition of
the transition from print to digital,
publishers of press publications publishers and news agencies ofas rightholders, licensing andpress publications are facing
enforcement in the digitalproblems in licensing the online
environment is often complex
use of their publications andand inefficient.
recouping their investments. In
the absence of recognition of
publishers of press publications asrightholders, licensing andenforcement in the digital
environment is often complex andinefficient.

(32) The organisational andfinancial contribution of

82(32) The organisational andfinancial contribution of

publishersThe wideavailability of press
publications online has givenrise to the emergence of new
online services, such as news
aggregators or media
monitoring services, forwhich the reuse of press
publications constitutes animportant part of theirbusiness models and a sourceof revenues. Publishers ofpress publications are facing
problems in licensing theonline use of their publications
and recoupingto the providersof these kind of services,making it more difficult forthem to recoup theirinvestments. In the absence ofrecognition of publishers ofpress publications asrightholders, licensing andenforcement of rights in press
publications regarding online
uses by information society
service providers in the digital
environment isare often
complex and inefficient.

(32) The organisational andfinancial contribution of

new online services, such as
news aggregators or media
monitoring services, for which
the reuse of press publications
constitutes an important part oftheir business models and asource of revenues. Publishersof press publications are facing
problems in licensing the online
use of their publications to theproviders of these kind ofservices, making it moredifficult for them to recoup theirinvestments. In the absence ofrecognition of publishers of press
publications as rightholders,licensing and enforcement ofrights in press publications
regarding online uses by
information society service
providers in the digital
environment are often complex
and inefficient.

publishers in producing press
publications needs to berecognised and further
encouraged to ensure thesustainability of the publishingindustry.It is therefore
necessary to provide at Unionlevel a harmonised legal
protection for press
publications in respect ofdigital uses. Such protection
should be effectively
guaranteed through theintroduction, in Union law, ofrights related to copyright for
the reproduction and making
available to the public of press
publications in respect ofdigital uses.

publishers in producing press
publishers in producing press
publications needs to be
publications needs to berecognised and further encouraged recognised and further
to ensure the sustainability of theencouraged to ensure thepublishing industry and thereby
sustainability of the publishingindustry. It is therefore
to guarantee the availability of
reliable information. It isnecessary to provide at Union
therefore necessary for Member
level a harmonised legalle-gal
States to provide at Union level a protection for press
harmonised legal protection for
publications in respect ofpress publications in respect ofdigitalonline uses by
the Union for digital uses. Suchinformation society service
protection should be effectively
providers, leaving unaffectedguaranteed through thecurrent copyright rules inintroduction, in Union law, ofUnion law applicable to uses
rights related to copyright for theof press publications by otherreproduction and making
users, including individual
available to the public of press
users. Such protection should
publications in respect of digitalbe effectively guaranteeduses in order to obtain fair andthrough the introduction, inUnion law, of rights related toproportionate remuneration forsuch uses. Private uses should be copyright for the reproduction
and making available to the
excluded from this reference. In
public of press publications inaddition, the listing in a searchrespect of digitalengine should not be consideredusespublished by publishers
as fair and proportionate
remuneration.
established in a Member
State in respect of online uses
by information society
service providers within themeaning of Directive (EU)2015/1535 of the European
83

publishers in producing press
publications needs to berecognised and further
encouraged to ensure thesustainability of the publishingindustry and thereby to foster
the availability of reliable
information. It is therefore
necessary to provide at Unionlevel a harmonised legal
protection for press publications
in respect of online uses by
information society service
providers, leaving unaffectedcurrent copyright rules inUnion law applicable to private
or non-commercial uses of press
publications by individual users,
including when they share press
publications online. Suchprotection should be effectively
guaranteed through theintroduction, in Union law, ofrights related to copyright for the
reproduction and making
available to the public of press
publications published bypublishers established in a
Member State in respect of
online uses by informationsociety service providers within
the meaning of Directive (EU)

70.

12

(33) For the purposes of thisDirective, it is necessary todefine the concept of press
publication in a way thatembraces only journalistic
publications, published by aservice provider, periodicallyor regularly updated in any
media, for the purpose of(33) For the purposes of thisDirective, it is necessary to define
the concept of press publication in
a way that embraces only
journalistic publications,published by a service provider,periodically or regularly updated
in any media, for the purpose of
informing or entertaining. Such

Parliament and of theCouncil.12 The legal
protection for press
publications provided for bythis directive should only
benefit publishers establishedin a Member State in themeaning of the Treaty of thefunctioning of the European
Union, i.e. when they havetheir registered office,central administration or
principal place of businesswithin the Union.

(33) For the purposes of thisDirective, it is necessary todefine the concept of press
publication in a way thatembraces only journalistic
publications, published by aservice provider, periodicallyor regularly updated in any
media, for the purpose of

2015/1535 of the European
Parliament and of the Council
12. The legal protection for press
publications provided for by thisDirective should only benefit
publishers established in a
Member State and having theirregistered office, central
administration or principal
place of business within theUnion.

The concept of publisher ofpress publications should beunderstood as covering service
providers, such as news
publishers or news agencies,
when they publish press
publications within the meaningof this Directive.

(33) For the purposes of thisDirective, it is necessary todefine the concept of press
publications so that it only
covers journalistic publications,published in any media,
including on paper, in thecontext of an economic activity
which constitutes a provision of

Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of
information in the field of technical regulations and of rules on Information Society services (OJ L 241, 17.9.2015, p. 1–15).
84

informing or entertaining. Such publications would include, forpublications would include, for instance, daily newspapers,
instance, daily newspapers,
weekly or monthly magazines ofweekly or monthly magazines
general or special interest andof general or special interest
news websites. Periodical
and news websites. Periodical
publications which are publishedpublications which arefor scientific or academic
published for scientific or
purposes, such as scientificacademic purposes, such as
journals, should not be covered byscientific journals, should not
the protection granted to press
be covered by the protection
publications under this Directive.
granted to press publications
This protection does not extend tounder this Directive. This
acts of hyperlinking which do notprotection does not extend toconstitute communication to theacts of hyperlinking which do
public. The protection shall also
not constitute communication
not extend to factual information
to the public.
which is reported in journalistic
articles from a press publication
and will therefore not prevent
anyone from reporting suchfactual information.

85

informing or entertaining.in
any media, including on
paper, in the context of an
economic activity whichconstitutes a provision ofservices under Union law.
The press publications to becovered are those whose
purpose is to inform thegeneral public and which areperiodically or regularly
updated. Such publications
would include, for instance,
daily newspapers, weekly ormonthly magazines of generalor special interest and news
websites. Press publications
contain mostly literary works
but increasingly include
other types of works andsubject-matter, notably
photographs and videos.
Periodical publications wich
are published for scientific or
academic purposes, such as
scientific journals, should not
be covered by the protection
granted to press publications
under this Directive. This
protection does not extend toacts of hyperlinking which do
not constitute communication

services under Union law. The
press publications to be covered
would include, for instance, daily
newspapers, weekly or monthly
magazines of general or special
interest, including subscription
based magazines, and news
websites. Press publications
contain mostly literary works but
increasingly include other types
of works and subject-matter,notably photographs and videos.
Periodical publications publishedfor scientific or academic
purposes, such as scientificjournals, should not be coveredby the protection granted to press
publications under this Directive.
Neither should this protection
apply to websites, such as blogs,
that provide information as partof an activity which is not
carried out under the initiative,
editorial responsibility andcontrol of service provider, suchas a news publisher.

to the public.
71.

(34) The rights granted to the
publishers of press publications
under this Directive should havethe same scope as the rights ofreproduction 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 the publishersof press publications should notextend to acts of hyperlinking.
They should also not extend tothe mere facts reported in thepress publications. They should
also be subject to the sameprovisions on exceptions andlimitations as those applicable to
the rights provided for in
Directive 2001/29/EC, including
the exception on quotation for
purposes such as criticism orreview laid down in Article
5(3)(d) of that Directive.

(34) The rights granted to the
publishers of press publications
under this Directive should havethe same scope as the rights ofreproduction and making
available to the public provided
for in Directive 2001/29/EC,
insofar as digital uses areconcerned. They Member Statesshould also be able to subject
those rights to the sameprovisions on exceptions andlimitations as those applicable to
the rights provided for in
Directive 2001/29/EC including
the exception on quotation for
purposes such as criticism orreview laid down in Article
5(3)(d) of that Directive.

(34) The rights granted tothe publishers of press
publications under thisDirective should have the same
scope as the rights ofreproduction and making
available to the public provided
for in Directive 2001/29/EC,
insofar as digitalonline uses
are concerned.by informationsociety service providers areconcerned. They should notextend to acts of hyperlinking
when they do not constitutecommunication to the public.
They should also be subject tothe same provisions on
exceptions and limitations as
those applicable to the rights
provided for in Directive
2001/29/EC, including theexception on quotation for
purposes such as criticism orreview laid down in Article
5(3)(d) of that Directive.

(34a) Uses of press
publications by informationsociety service providers canconsist of the use of entire(34) The rights granted tothe publishers of press
publications under thisDirective should have the same
scope as the rights ofreproduction and making
available to the public
provided for in Directive
2001/29/EC, insofar as digitaluses are concerned. They
should also be subject to thesame provisions on exceptions
and limitations as those
applicable to the rights
provided for in Directive
2001/29/EC including theexception on quotation for
purposes such as criticism orreview laid down in Article
5(3)(d) of that Directive.

72.

(34a) Uses of press
publications by informationsociety service providers canconsist of the use of entire86

87

publications or articles but
also of parts of press
publications. Such uses ofparts of press publications
have also gained economic
relevance. At the same time,
where such parts are
insubstantial, the use thereof
by information society
service providers may notundermine the investments
made by publishers of press
publications in the
production of content.
Furthermore, insubstantial
parts of press publications
are not usually theexpression of the intellectual
creation of their authors, inaccordance with the case lawof the Court of Justice of theEuropean Union. Therefore,
it is appropriate to providethat the use of insubstantial
parts of press publications
should not fall within thescope of the rights provided
for in this Directive. To
determine the insubstantial
nature of parts of press
publications for the purposesof this Directive, Member

publications or articles but alsoof parts of press publications.
Such uses of parts of press
publications have also gained
economic relevance. At thesame time, the use of individual
words or very short extracts ofpress publications by
information society service
providers may not undermine
the investments made bypublishers of press publicationsin the production of content.
Therefore, it is appropriate toprovide that the use ofindividual words or very short
extracts of press publications
should not fall within the scopeof the rights provided for in thisDirective. Taking into accountthe massive aggregation and useof press publications by
information society service
providers, it is important thatthe exclusion of very short
extracts should be interpreted insuch a way as not to affect theeffectiveness of the rights

73.

(35) The protection granted
to publishers of press
publications under thisDirective should not affect therights of the authors and otherrightholders in the works andother subject-matterincorporated therein, including
as regards the extent to whichauthors and other rightholders
can exploit their works or othersubject-matter independently
from the press publication inwhich they are incorporated.
Therefore, publishers of press
publications should not be able
to invoke the protection
granted to them against authorsand other rightholders. This iswithout prejudice tocontractual arrangements

States may take into account
whether these parts are theexpression of the intellectual
creation of their authors orwhether these parts arelimited to individual words
or very short excerpts,
without independent
economic significance, orboth criteria.

(35) The protection granted to(35) The protection granted
publishers of press publications
to publishers of press
under this Directive should not
publications under thisaffect the rights of the authors and Directive should not affect theother rightholders in the works
rights of the authors and otherand other subject-matterrightholders in the works andincorporated therein, including as other subject-matter
regards the extent to which
incorporated therein, including
authors and other rightholders can as regards the extent to which
exploit their works or otherauthors and other rightholders
subject-matter independently from can exploit their works or otherthe press publication in which
subject-matter independently
they are incorporated. Therefore,
from the press publication in
publishers of press publications
which they are incorporated.
should not be able to invoke the
Therefore, publishers of press
protection granted to them against publications should not be ableauthors and other rightholders.
to invoke the protection
This is without prejudice togranted to them against authors
contractual arrangements
and other rightholders. or
concluded between the publishers against other authorisedof press publications, on the oneusers of the same works and88

provided for in this Directive.

(35) The protection granted to
publishers of press publications
under this Directive should notaffect the rights of the authorsand other rightholders in theworks and other subject-matterincorporated therein, including
as regards the extent to whichauthors and other rightholders
can exploit their works or othersubject-matter independently
from the press publication inwhich they are incorporated.
Therefore, publishers of press
publications should not be able
to invoke the protection granted
to them against authors and otherrightholders or against otherauthorised users of the sameworks and other subject-matter.
This is without prejudice tocontractual arrangements

concluded between the
publishers of press
publications, on the one side,
and authors and otherrightholders, on the other side.

side, and authors and otherrightholders, on the other side.
Notwithstanding the fact that
authors of the works
incorporated in a press
publication receive anappropriate reward for the use of
their works on the basis of theterms for licensing of their work
to the press publisher, authors
whose work is incorporated in apress publication should beentitled to an appropriate shareof the new additional revenues
press publishers receive forcertain types of secondary use of
their press publications by
information society service
providers in respect of the rights
provided for in Article 11(1) of
this Directive. The amount of thecompensation attributed to theauthors should take into accountthe specific industry licensing
standards regarding works
incorporated in a press
publication which are accepted
as appropriate in the respective
Member State; and thecompensation attributed toauthors should not affect thelicensing terms agreed between
89

other subject-matter. This iswithout prejudice tocontractual arrangements
concluded between the
publishers of press
publications, on the one side,
and authors and otherrightholders, on the other side.

concluded between the
publishers of press publications,on the one side, and authors andother rightholders, on the otherside.

Authors whose works areincorporated in a press
publication should be entitled toan appropriate share of therevenues press publishers
receive for the uses of theirpress publications by
information society service
providers.

This is without prejudice toMember States’ laws on
ownership and exercise of rights
in the context of employment
contracts, provided that they arecompliant with Union law.

74.

(36) Publishers, including
those of press publications,books or scientificpublications, often operate on
the basis of the transfer ofauthors' rights by means ofcontractual agreements. In thiscontext, publishers make an
investment with a view to the
exploitation of the works
contained in their publications
and may in some instances be
deprived of revenues wheresuch works are used under
exceptions or limitations suchas the ones for private copying
and reprography. In a numberof Member Statescompensation for uses underthose exceptions is shared
between authors andpublishers. In order to takeaccount of this situation andimprove legal certainty for allconcerned parties, Member
States should be allowed todetermine that, when an author

the author and the press
publisher for the use of theauthor’s article by the press
publisher.
(36) Publishers, including thoseof press publications, books orscientific publications, often andmusic publications, operate on
the basis of the transfer of authors'
rights by means of contractual
agreements with authors. In thiscontext, publishers make an
investment and acquire rights, insome fields including rights toclaim a share of compensation
within joint collective
management organisations ofauthors and publishers, with aview to the exploitation of theworks contained in their
publications and may in someinstances be therefore also findthemselves being deprived ofrevenues where such works areused under exceptions orlimitations such as the ones forprivate copying and reprography.
In a large number of Member
States compensation for uses
under those exceptions is shared
between authors and publishers.
90(36) Publishers, including
those of press publications,books or scientificpublications, often operate on
the basis of the transfer ofauthors' rights by means ofcontractual agreements or
statutory provisions. In thiscontext, publishers make an
investment with a view to the
exploitation of the works
contained in their publications
and may in some instances be
deprived of revenues wheresuch works are used under
exceptions or limitations, suchas the ones for private copying
and reprography., including
the corresponding existing
national schemes forreprography in the Member
States, or under public
lending schemes. In a numberof Member States thecompensation or
remuneration for such uses
under those exceptions is(36) Publishers, including thoseof press publications, books orscientific publications and music
publications, often operate on thebasis of the transfer of authors'
rights by means of contractual
agreements or statutory
provisions. In this context,
publishers make an investment
with a view to the exploitation of
the works contained in their
publications and may in someinstances be deprived ofrevenues where such works areused under exceptions orlimitations, such as the ones forprivate copying and reprography,
including the corresponding
existing national schemes forreprography in the Member
States, or under public lending
schemes.
In several Member Statescompensation for uses underthose exceptions is shared
between authors and publishers.
In order to take account of thissituation and to improve legal

has transferred or licensed his
rights to a publisher orotherwise contributes with hisworks to a publication andthere are systems in place tocompensate for the harmcaused by an exception orlimitation, publishers areentitled to claim a share ofsuch compensation, whereas
the burden on the publisher tosubstantiate his claim should
not exceed what is required
under the system in place.

In order to take account of thissituation and to improve legal
certainty for all concerned parties,
Member States should be allowed
to determine that, when an author
has transferred or licensed his
rights to a publisher or otherwise
contributes with his works to a
publication and there are systems
in place to compensate for theharm caused by an exception orlimitation, publishers are entitled
to claim a share of suchcompensation, whereas the burden
on the publisher to substantiate his
claim should not exceed what isrequired under the system inplace. provide an equivalent
compensation-sharing system ifsuch a system was in operation inthat Member State before 12
November 2015. The sharebetween authors and publishersof such compensation could be
set in the internal distribution
rules of the collective
management organisation acting
jointly on behalf of authors andpublishers, or set by Members
States in law or regulation, in
accordance with the equivalentsystem that was in operation in91

shared between authors andpublishers. In order to takeaccount of this situation andimprove legal certainty for allconcerned parties, Member
States should be allowed but
not obliged to determine that,when an author has transferredor licensed his rights to a
publisher or a collective
management organisationthat jointly represents
authors and publishers orotherwise contributes with hisworks to a publication andthere are systems in place tocompensate for the harmcaused by an exception orlimitation, publishers areentitled to claim a share ofsuch compensation, whereas.
The same possibility should
exist for remuneration for
public lending, while
Member States should
remain free to decide not toprovide publishers with such
remuneration. Member
States should remain free todetermine the burden on the
publisher to substantiate his
claim should not exceed whatcertainty for all concerned
parties, this Directive allows
Member States that have inplace existing schemes for the
sharing of compensation
between authors andpublishers to maintain them.

This is particularly importantto those Member States that
had such compensationsharing mechanisms before 12
November 2015 although inother Member States,
compensation is not shared andsolely due to authors inaccordance with national
cultural policies. While thisDirective should apply in a
non-discriminatory way to all
Member States, it should
respect the traditions in thisarea and not oblige thoseMember States that do notcurrently have suchcompensation-sharing schemes
to introduce them. It should notaffect existing and futurearrangements in Member States
regarding remuneration in thecontext of public lending. It
should also leave untouchedthat Member State before 12
November 2015. This provision is
without prejudice to thearrangements in the Member
States concerning public lending
rights, the management of rights
not based on exceptions orlimitations to copyright, such as
extended collective licensing
schemes, or concerning
remuneration rights on the basisof national law.

92

is required underfor thesystemcompensation or
remuneration and to lay
down the conditions as to thesharing of this compensation
or remuneration between
authors and publishers inplaceaccordance with theirnational systems.

national arrangements related
to the management of rights
and to remuneration rights,
provided that they comply with
Union law.

All Member States should beallowed but not obliged todetermine that, when an author
has transferred or licensed his
rights to a publisher or otherwise
contributes with his works to a
publication and there are systems
in place to compensate for theharm caused to them by an
exception or limitation, including
through collective management
organisations that jointly
represent authors and publishers,
publishers are entitled to a shareof such compensation.

Member States should remain
free to determine the burden on
the publisher to substantiate his
claim for the compensation or
remuneration and to lay down
the conditions as to the sharingof this compensation or
remuneration between authors
and publishers in accordancewith their national systems.

75.

76.

(37) Over the last years, thefunctioning of the online
content marketplace has gainedin complexity. Online services
providing access to copyrightprotected content uploaded bytheir users without the
involvement of right holders
have flourished and havebecome main sources of access(36 a) Cultural and creative
industries (CCIs) play a key role
in reindustrialising Europe, are adriver for growth and are in a
strategic position to trigger
innovative spill-overs in otherindustrial sectors. Furthermore
CCIs are a driving force forinnovation and development of
ICT in Europe. Cultural andcreative industries in Europe
provide more than 12 million
full-time jobs, which amounts to
7,5 % of the Union's work force,creating approximately EUR 509
billion in value added to GDP(5,3 % of the EU's total GVA).
The protection of copyright andrelated rights are at the core of
the CCI's revenue.
(37) Over the last years, thefunctioning of the online content
marketplace market has gained incomplexity. Online services
providing access to copyrightprotected content uploaded bytheir users without the
involvement of right holders haveflourished and have become main
sources of access to copyright93(37) Over the last years, thefunctioning of the online
content marketplace has gainedin complexity. Online content
sharing services providing
access to a large amount of
copyright -protected content
uploaded by their users without
the involvement of rightholders have[deleted](37) Over the last years, thefunctioning 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 main sources ofaccess to content online. Online
services are means of providing

to content online. This affects
protected content online. Online
rightholders' possibilities toservices are means of providing
determine whether, and underwider access to cultural andwhich conditions, their work
creative works and offer greatand other subject-matter areopportunities for cultural andused as well as theircreative industries to develop new
possibilities to get anbusiness models. However,appropriate remuneration for it. although they allow for diversity
and ease of access to content,
they also generate challenges
when copyright protected content
is uploaded without priorauthorisation from rightholders.
This affects rightholders'possibilities to determine whether,and under which conditions, theirwork and other subject-matter areused as well as their possibilities
to get an appropriate remuneration
for it, since some user uploaded
content services do not enter into
licensing agreements on the basisthat they claim to be covered by
the “safe-harbour” exemption set
out in Directive 2000/31/EC.

94flourisheddeveloped and havebecome main sources of accessto content online. ThisLegal
uncertainty exists as towhether such services engage
in copyright relevant acts
and need to obtain
authorisations fromrightholders for the content
uploaded by their users who
do not hold the relevant
rights in the uploaded
content, without prejudice tothe application of exceptions
and limitations provided forin Union Law. This situation
affects rightholders'possibilities to determine
whether, and under which
conditions, their work andother subject-matter arecontent is used as well as their
possibilities to get anappropriate remuneration for it.
It is therefore important tofoster the development of thelicensing market between
rightholders and online
content sharing service
providers. These licensing
agreements should be fairand keep a reasonablewider access to cultural andcreative works and offer great
opportunities for cultural andcreative industries to develop
new business models. However,
although they allow for diversity
and ease of access to content,
they also generate challenges
when copyright protected
content is uploaded without
prior authorisation fromrightholders.

Legal uncertainty exists as towhether such services engage incopyright relevant acts and need
to obtain authorisations fromrightholders for the 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. This
uncertainty affects rightholders'possibilities to determine
whether, and under which
conditions, their works and othersubject-matter are used as wellas their possibilities to get anappropriate remuneration for it.

It is therefore important to foster

77.

balance for both parties.
Rightholders should receive
an appropriate reward forthe use of their works orother subject matter.

(37a) Certain information(37a) The definition of ansociety services, as part of their
online content sharing
normal use, are designed to give
service provider under thisaccess to the public to copyright
Directive targets only online
protected content or otherservices which play ansubject-matter uploaded by theirimportant role on the online
users. The definition of an online content market by competing
content sharing service provider
with other online content
under this Directive shall coverservices, such as online audio
information society service
and video streaming services,
providers one of the mainfor the same audiences. The
purposes of which is to store and services covered by thisgive access to the public or tointervention are those the95

the development of the licensing
market between rightholders andonline content sharing service
providers. These licensing
agreements should be fair andkeep a reasonable balance forboth parties. Rightholders should
receive an appropriate reward forthe use of their works or othersubject matter.

However, as contractual
freedom is not affected bythese provisions, the rightholders should not be obliged
to give an authorisation or toconclude licensing agreements.

(37a) Certain informationsociety services, as part of theirnormal use, are designed to giveaccess to the public to copyrightprotected content or othersubject-matter uploaded by theiruser. The definition of an online
content sharing service under
this Directive should target only
online services which play animportant role on the online
content market by competingwith other online content

stream significant amounts ofcopyright protected content
uploaded / made available by its
users, and that optimise content,
and promote for profit making
purposes, including amongst
others displaying, tagging,
curating, sequencing, theuploaded works or other subjectmatter, irrespective of the means
used therefor, and therefore act
in an active way. As aconsequence, they cannot benefit
from the liability exemption
provided for in Article 14 of
Directive 2000/31/EC. The
definition of online content
sharing service providers under
this Directive does not cover
microenterprises and small sizedenterprises within the meaning ofTitle I of the Annex toCommission Recommendation
2003/361/EC and service
providers that act in a noncommercial purpose capacity
such as online encyclopaedia,
and providers of online services
where the content is uploadedwith the authorisation of all rightholders concerned, such as
educational or scientific96

main or one of the main
purposes of which is toprovide access to a large
amount of copyrightprotected content uploadedby their users with the
purpose of obtaining profit
therefrom, either directly or
indirectly, by organising it
and promoting it in order toattract more audiences.
Organising and promoting
content involves for example
indexing the content,
presenting it in a certain
manner and categorising it,
as well as using targeted
promotion on it. The
definition does not include
services whose main purpose
is not to provide access tocopyright protected content
with the purpose of obtaining
profit from this activity.
These include, for instance,electronic communication
services within the meaningof Regulation 2015/2120/EU,
including internet accessproviders, as well as
providers of cloud services
which allow users, to upload

services, such as online audio
and video streaming services, forthe same audiences. The services
covered by this Directive arethose services, the main or oneof the main purposes of which is
to store and enable users to
upload and share a large amountof copyright protected content
with the purpose of obtaining
profit therefrom, either directly
or indirectly, by organising it andpromoting it in order to attract alarger audience, including by
categorising it and using targeted
promotion within it. The
definition does not include
services which have anothermain purpose than enabling users
to upload and share a large
amount of copyright protected
content with the purpose ofobtaining profit from thisactivity. These include, forinstance, electronic
communication services within
the meaning of Directive
2018/1972 establishing theEuropean Electronic
Communications Code, as wellas providers of business tobusiness cloud services and78.

(37b) The assessment of
whether an online content
sharing service provider

repositories. Providers of cloudcontent for their own use,
services for individual use which such as cyberlockers, or
do not provide direct access toonline marketplaces whose
the public, open source software
main activity is online retaildeveloping platforms, and online and not giving access tomarket places whose main
copyright protected content.
activity is online retail of physical Nor does this definition covergoods, should not be consideredwebsites which store andonline content sharing service
provide access to content forproviders within the meaning of
non-for-profit purposes, such
this Directive.
as online encyclopaedias,
scientific or educational
repositories or open source
software developing
platforms which do not store
and give access to content for
profit making purposes. In
order to ensure the high levelof copyright protection andto avoid the possible
application of the liability
exemption mechanism
provided for in thisDirective, this Directive
should not apply to services
the main purpose of which is
to engage in or to facilitate
copyright piracy.

97

cloud services, which allow
users to upload content for theirown use, such as cyberlockers,
or online marketplaces whose
main activity is online retail andnot giving access to copyrightprotected content. Providers ofservices such as open source
software development andsharing platforms, not for profit
scientific or educational
repositories as well as not-forprofit online encyclopedias arealso excluded from thisdefinition.

Finally, in order to ensure a highlevel of copyright protection, theliability exemption mechanism
provided for in Article 13 should
not apply to service providers themain purpose of which is toengage in or to facilitate
copyright piracy.

(37b) The assessment of
whether an online content
sharing service provider stores

79.

(38) Where informationsociety service providers store
and provide access to the
public to copyright protected
works or other subject-matter
uploaded by their users,
thereby going beyond the mere
provision of physical facilities
and performing an act ofcommunication to the public,
they are obliged to conclude
licensing agreements withrightholders, unless they are
eligible for the liability
exemption provided in Article
14 of Directive 2000/31/EC of(38) Where informationsociety Online content sharing
service providers store andprovide access to the public tocopyright protected works orother subject-matter uploaded bytheir users, thereby going beyond
the mere provision of physicalfacilities and performing perform
an act of communication to the
public, they are obliged to andtherefore are responsible for
their content and should
therefore conclude fair andappropriate licensing agreementswith rightholders, unless they are

98(38) This Directive clarifies
under which conditions the
Where information society
online content sharing service
providers store and provide
access to copyright protected
works or other subject-matter
uploaded by their users,
thereby going beyond the mere
provision of physical facilities
and performing are engaging
in an act of communication to
the public or making
available to the public within
the meaning of Article 3(1)and (2) of Directive
2001/29/EC they are obliged

stores and gives access to alarge amount of copyrightprotected content needs to bemade on a case-by-case basis
and take account of a
combination of elements,
such as the audience of theservice and the number offiles of copyright-protected
content uploaded by theusers of the services.

(38) This Directive clarifies
that online content sharing
service providers engage in an
act of communication to the
public or making available to the
public when they give the publicaccess to copyright protected
works or other protected subject
matter uploaded by their users.
Consequently, the online content
sharing service providers should
obtain an authorisation,
including via a licencing
agreement, from the relevant
rightholders. This does not affectthe concept of communication to

and gives access to a large
amount of copyright-protected
content needs to be made on acase-by-case basis and takeaccount of a combination ofelements, such as the audience ofthe service and the number offiles of copyright-protected
content uploaded by the users of
the services.

13

80.

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, inparticular electronic commerce, in the Internal Market (OJ L 178, 17.7.2000, p. 1–16).

In respect of Article 14, it is

the European Parliament andof the Council13.

Deletedeligible for. Where licensing
agreements are concluded, theyshould also cover, to the same
extent and scope, the liability
exemption provided in of users
when they are acting in a noncommercial capacity. In
accordance with Article 14 of
Directive 2000/31/EC of theEuropean Parliament and of theCouncil 11(2a) the responsibilityof online content sharing
providers pursuant to Article 13
does not extend to acts ofhyperlinking in respect of press
publications. The dialogue
between stakeholders is essential
in the digital world. They should
define best practices to ensure
the functioning of licensing
agreements and cooperation
between online content sharing
service providers andrightholders. Those best practices
should take into account theextent of the copyright infringing
content on the service.

Deleted, partly moved toto conclude licensing
agreements with rightholders,
unless they are eligible for theliability exemption provided in
Article 14 of Directive
2000/31/EC of the European
Parliament and of the Council.
It does not change theconcept of communication to
the public or of making
available to the public under
Union law nor does it affectthe possible application of
Article 3(1) and (2) ofDirective 2001/29/EC toother services using
copyright-protected content.

Deletedthe public or of making available
to the public elsewhere under
Union law nor does it affect thepossible application of Article
3(1) and (2) of Directive
2001/29/EC to other service
providers using copyrightprotected content.

99

81.

82.

necessary to verify whether theservice provider plays anactive role, including by
optimising the presentation of
the uploaded works or subjectmatter or promoting them,irrespective of the nature of themeans used therefor.
In order to ensure thefunctioning of any licensing
agreement, information society
service providers storing andproviding access to the public
to large amounts of copyrightprotected works or othersubject-matter uploaded bytheir users should takeappropriate and proportionate
measures to ensure protectionof works or other subjectmatter, such as implementing
effective technologies. Thisobligation should also apply
when the information society
service providers are eligible
for the liability exemption
provided in Article 14 of
Directive 2000/31/EC.
Deleted

100

Deleted, partly moved torecital (38c) Council's text –see row 84(38a) When online content
sharing service providers are

Deletedrecital (37a) Council's text –see row 77(38a) [Renumbered - in ST
9134/18 recital 38(b)]101When online content sharing
service providers
communicate to the public,
they should not benefit fromthe limited liability provided
for in Article 14 of Directive
2000/31/EC for the purposesof copyright relevant acts.
This should not affect thepossibility for the same
online content sharing
providers to benefit fromsuch exemption of liability
for other purposes thancopyright when they areproviding their services andhost content at the request of
their users in accordancewith Article 14 of Directive
2000/31/EC.

liable for acts of communication
to the public or making
available to the public under theconditions established under
this Directive, Article 14(1) of
Directive 2000/31/EC should
not apply to the liability arisingfrom Article 13 of this Directive.
This should not affect theapplication of Article 14(1) of
Directive 2000/31/EC to these
service providers for purposes
falling outside the scope of thisDirective.

Article 13(4aa) applies to new
online services. A similar
provision is foreseen in Article
16(2) of Directive 2014/26/EU
of 26 February 2014 oncollective management of
copyright and related rights andmulti-territorial licensing ofrights in musical works foronline use in the internalmarket. The rules set in thisDirective are intended to take
into account the specific case ofstart-up companies working
with user uploads to develop
new business models.

The modified regime applicable

83.

102

(38b) [Renumbered - in ST
9134/18 recital (38c)]
Taking into account the factthat online content sharing
service providers give accessto new service providers with asmall turnover and audienceshould benefit genuine newenterprises and should therefore
cease to apply three years after
they became first available
online in the Union. It should
not be abused by arrangements
aiming at extending the benefitof this modified regime beyond
the first three years. In
particular, it should not apply toservices newly created or toservices provided under a newname but which are pursuing
the activity of an alreadyexisting online content sharing
service provider which could not
or does not longer benefit fromthis regime.

[Above text was moved to recital
38ba (row 83) as a technicalchange, to align to the structure
in Article 13](38b) Taking into account thefact that online content sharing
service providers give access tocontent which is not uploaded bythem but by their users, it is103

to content which is not
uploaded by them but by
their users, it is appropriate
to provide that, for cases
where no authorisation has
been obtained by the services
and, for the purpose of thisDirective, they should not beliable for unauthorised actsin specific, well-defined
circumstances, when they
demonstrate that they haveacted in a diligent mannerwith the objective to prevent
such unauthorised acts,
without prejudice toremedies under national law
for cases other than liability
for copyright infringements
and to the possibility fornational courts oradministrative authorities of
issuing injunctions. In
particular, they should not
be liable if someunauthorised content isavailable on their services
despite their best efforts toprevent its availability by
applying effective andproportionate measures
based on the information

appropriate to provide for a
specific liability mechanism forthe purposes of this Directive forcases where no authorisation has
been granted. This should be
without prejudice to remedies
under national law for cases
other than liability for copyright
infringements and to thepossibility for national courts oradministrative authorities of
issuing injunctions incompliance with Union law. In
particular, the specific regime
applicable to new online
content sharing service
providers with an annual
turnover below 10 million
euros, whose average numberof monthly unique visitors in
the Union does not exceed 5
million should not affect theavailability of remedies undernational law and EU law.

Where no authorisation has been
granted to the services providers,
they should make their best
efforts in accordance with highindustry standards ofprofessional diligence to avoid

104

provided by rightholders. In
addition, for the online
content sharing service
providers not to be liable,
they should also in any case,upon notification by
rightholders of specificunauthorised works or othersubject-matter, act
expeditiously to remove or
disable access to these andmake their best efforts toprevent their futureavailability.

the availability on their servicesof unauthorised works and othersubject matter, as identified by
the relevant rightholders. For
that purpose rightholders should
provide the service providers
with necessary and relevant
information taking into account,among other factors, the size ofrightholders and the type of theirworks and other subject matter.
The steps taken by the online
content sharing service providers
in cooperation with rightholders
should not lead to the preventionof the availability of noninfringing content, including theuse of works or other protectedsubject matter covered by alicencing agreement, exception
or limitation to copyright.
Thereby it should not affectusers who are using the online
content sharing providers’services in order to lawfully
upload and access informationon these services.

The obligations established in
Article 13 should also not lead toMember States imposing ageneral monitoring obligation.

105

When assessing whether an
online content sharing service
provider has made its best efforts
according to the high industry
standards of professional
diligence, account should betaken of whether the service
provider has taken all the steps
that would be taken by a diligent
operator to achieve the result ofpreventing the availability ofunauthorised works or othersubject matter on its website,taking into account best industry
practices and the effectiveness ofthe steps taken in light of all
relevant factors anddevelopments, as well as theprinciple of proportionality. For
the purposes of this assessment,a number of elements should beconsidered, such as the size ofthe service, the evolving state of
the art of existing means,including future developments,
for avoiding the availability ofdifferent types of content andtheir cost for the services.
Different means to avoid theavailability of unauthorised
copyright protected content may

106

be appropriate and proportionate
per type of content and it istherefore not excluded that insome cases unauthorised content
may only be avoided upon
notification of rightholders.

Any steps taken by the service
providers should be effectivewith regard to the objectives
sought but should not go beyond
what is necessary to achieve theobjective of avoiding anddiscontinuing the availability ofunauthorised works and othersubject matter.

If unauthorised works and othersubject matter become available
despite the best efforts made incooperation with rightholders as
required by this Directive, theonline content sharing service
providers should be liable inrelation to the specific works andother subject matter for which
they have received the relevant
and necessary information fromrightholders, unless they
demonstrate that they have madetheir best efforts pursuant to highindustry standards ofprofessional diligence.

107

In addition, where specificunauthorised works or othersubject matter have become
available on the services,
including irrespective of whether
the best efforts were made andregardless of whether rightholders have made available thenecessary information inadvance, the online content
sharing service providers should
be liable for unauthorised acts ofcommunication to the public ofworks and other subject matter,when upon receiving asufficiently substantiated notice,they fail to act expeditiously toremove from their websites ordisable access to the notified
works and subject matter.
Additionally, these services
should also be liable and if they
fail to demonstrate that they havemade their best efforts to preventthe future uploads of notified
specific unauthorised works,
based on relevant and necessary
information provided byrightholders for that purpose.

When rightholders do not108provide the service providers,with the necessary and relevant
information on their specificworks and other subject matteror when no notification
concerning the removal or
disabling access to specificunauthorised works or othersubject matter has been provided
by rightholders and, as a result,online content sharing service
providers cannot make their best
efforts to avoid on their services
the availability of unauthorised
content in accordance with thehigh standard of professional
diligence, the service providers
should not be liable forunauthorised acts ofcommunication to the public orof making available to the publicof these unidentified works andother subject matter.

(38ba) [Text moved fromCouncil’s recital 38(a) as atechnical change, to align to thestructure in Article 13]

Article 13(4aa) applies to new
online services. A similar
provision is foreseen in Article

109

16(2) of Directive 2014/26/EU
of 26 February 2014 oncollective management of
copyright and related rights andmulti-territorial licensing ofrights in musical works foronline use in the internal market.
The regulation is rules set inthis Directive are intended totake into account the specificcase of start-up companies
working with user uploads todevelop new business models.

The modified regime applicable
to new service providers with asmall turnover and audienceshould benefit genuine newenterprises and should therefore
cease to apply three years after
they became first available
online in the Union. It should not
be abused by arrangements
aiming at extending the benefitof this modified regime beyond
the first three years. In particular,
it should not apply to services
newly created or to services
provided under a new name but
which are pursuing the activityof an already existing online
content sharing service provider
which could not or does not

84.

110

(38c) [Renumbered - in ST
9134/18 recital (38ca)]

Appropriate collaboration
carried out in good faith
between online content
sharing service providers
and rightholders is essential
for the effective applicationof the measures by the online
content sharing service
providers. These service
providers should betransparent towards
rightholders with regard to
the deployed measures. As
different measures may be
used by the online content
sharing service providers,
they should provide
rightholders withappropriate information on
the type of measures used
and the way they operate,
including for example
information on the successrate of the measures. Suchinformation should be
sufficiently specific toprovide enough transparency

longer benefit from this regime.

(38c) The online content sharing
service providers should betransparent towards rightholders
with regard to the steps taken in
the context of the cooperation.
As different actions may beundertaken by the online content
sharing service providers, theyshould provide rightholders, attheir request, with adequate
information on the type ofactions undertaken and the way
they are implemented. Suchinformation should be
sufficiently specific to provide
enough transparency torightholders, without prejudice tothe business secrets of online
content sharing service
providers. Service providers
should however not be required
to provide rightholders withdetailed and individualised
information for each work andother subject matter identified.
This is without prejudice tocontractual arrangements, which

111

for rightholders and allow
cooperation to ensure
effective functioning of themeasures, without prejudice
to the business secrets ofservice providers. Service
providers should however
not be required to provide
rightholders with detailed
and individualised
information for each workand other subject matter
identified. This is without
prejudice to contractual
arrangements, which may
contain more specificprovisions on theinformation to be provided
where agreements areconcluded between service
providers and rightholders.
On the other hand,rightholders should provide
the service providers withnecessary and relevant data
for the application of themeasures to their specificunauthorised works or othersubject matter taking also
into account the size ofrightholders and the type of
their works and other subject

may contain more specificprovisions on the information to
be provided where agreements
are concluded between service
providers and rightholders.

85.

112

matter. As long as no data
for the application of themeasures or no notification
concerning removal or
disabling access to specificunauthorised works or othersubject matter has been
provided by rightholders
and, as a result, online
content sharing service
providers cannot take themeasures or expeditious
action as set out in thisDirective, these service
providers should not beliable for unauthorised actsof communication to the
public or of making available
to the public.

(38d) Where online content
sharing service providers
obtain authorisations,
including via licensing
agreements, for the use on
the service of content
uploaded by the users of theservices, these authorisations
should also cover the
copyright relevant acts in
respect of uploads by theusers but only in cases where(38d) Where online content
sharing service providers obtain
authorisations, including via
licensing agreements, for the useon the service of content
uploaded by the users of theservice, these should also cover
the copyright relevant acts in
respect of uploads by the of users
when they upload content within
the scope of the authorisation
granted to the service providers,

113

the users act in their private
capacity and for noncommercial purposes, suchas sharing their content
without any profit making
purpose.

(38e) The measures takenby the online content sharing
service providers to preventthe availability ofunauthorised works or othersubject-matter should be
effective but remain
proportionate, in particularwith regard to the size of theonline content sharing
service provider. While thisDirective is expected to foster
the development of effective
technologies on the market,
the availability of themeasures may differ
according to the type ofcontent for which themeasures are applied.
Having regard to thetechnological developments
in line with industry bestpractices, those measures
should consequently ensure alevel of efficiency
appropriate to the amountbut only in cases where the users
act for non-commercial
purposes, such as sharing theircontent without any profit
making purpose, or when therevenue generated by their
uploads are not significant inrelation to the copyright relevant
act of the users for which they
are covered.

Examples of such acts include
uploads of content by individual
users, such as parodies, remakes,
educational videos, or covers ofmusic or videos made for leisureor generating little revenues
because they attract small
audience.

When 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 should be isauthorised within the scope of
the authorisation granted by therightholder. However, there
should be no presumption infavour of the online content
sharing service providers that

114

and the type of works ortheir users have cleared all theother subject matterrelevant rights.
uploaded by the users of theservices. For the purposes ofassessing the proportionalityof measures to be taken by
the online content sharing
service providers, the state of
the art of existing
technologies for the different
types of content as well as thesize of the services should betaken into account notably
whether they are small andmicro enterprises. Different
measures may beappropriate andproportionate per type ofcontent and it is therefore
not excluded that in somecases unauthorised content
may only be avoided upon
notification of rightholders.
The measures should be
proportionate in order toavoid imposing
disproportionately
complicated or costly
obligations on certain online
content sharing service
providers, taking into
account notably their small

86.

(39) Collaboration between
information society service
providers storing and providing
access to the public to large
amounts of copyright protected
works or other subject-matter(39) Collaboration between
information society Member
States should provide that where
right holders do not wish toconclude licensing agreements,
online content sharing service
115

size. In particular, small andmicro enterprises as definedin Title I of the Annex toCommission
Recommendation
2003/361/EC, should be
expected to be subject to lessburdensome obligations thanlarger service providers.
Therefore, taking into
account the state of the art
and the availability oftechnologies and their costs,
in specific cases it may not be
proportionate to expect small
and micro enterprises toapply preventive measuresand that therefore in suchcases these enterprises
should only be expected to
expeditiously remove specificunauthorised works andother subject matter upon
notification by rightholders.

(39) Moved up torecital (38c)[which wasrecital (38ca) in ST
9134/18]

Deleteduploaded by their users andproviders storing and providing
rightholders is essential for the access to the public to large
functioning of technologies,
amounts of copyright and rightsuch as content recognition
holders should cooperate in goodtechnologies. In such cases,
faith in order to ensure thatrightholders should provide the unauthorised protected works ornecessary data to allow theother subject matter uploaded by,services to identify their
are not available on their users
content and the services should and rightholders is essential forbe transparent towards
the functioning of technologies,
rightholders with regard to the such as content recognition
deployed technologies, totechnologies. In such cases,
allow the assessment of theirrightholders should provide theappropriateness. The services
necessary data to allow theshould in particular provide
services. Cooperation between
rightholders with information
online to identify their content
on the type of technologies
and the services should be
used, the way they are operated transparent towards rightholders
and their success rate for thewith regard to the deployedrecognition of rightholders'technologies, to allow thecontent. Those technologies
assessment of theirshould also allow rightholders appropriateness. The services
to get information from theshould in particular provide
information society service
rightholders with information on
providers on the use of their
the type of technologies used, thecontent covered by an
way they are operated and theiragreement.
success rate for the recognition ofrightholders' content. Thosetechnologies should also allow
rightholders to get informationfrom the information society
service providers on the use of
116

87.

their content and right holders
should not lead to preventing theavailability of non-infringing
works or other protected subject
matter, including those coveredby an agreement exception orlimitation to copyright.

(39a) Members States should
ensure that online content
sharing service providers
referred to in paragraph 1 put inplace effective and expeditious
complaints and redress
mechanisms that are available tousers in case the cooperationreferred to in paragraph 2a leads
to unjustified removals of theircontent. Any complaint filed
under such mechanisms should
be processed without undue
delay. Right holders should
reasonably justify their decisions
to avoid arbitrary dismissal ofcomplaints. Moreover, in
accordance with Directive
95/46/EC, Directive 2002/58/EC
and the General Data Protection
Regulation, the cooperation
should not lead to any
identification of individual users
117(39a) [Renumbered - in ST
9134/18 recital (39b)]

The measures taken by the
online content sharing
service providers should be
without prejudice to theapplication of exceptions andlimitations to copyright,
including in particular thosewhich guarantee the freedomof expression of users. For
that purpose the service
providers should put in placemechanisms allowing users
to complain about theblocking or removal of
uploaded content that could
benefit from an exception orlimitation to copyright.
Replies to the users’
complaints should be
provided in a timely manner.

(39a) The steps taken by the
online content sharing service
providers should be without
prejudice to the application of
exceptions and limitations tocopyright, including in particular
those which guarantee thefreedom of expression of users.

Users shall should be allowed to
upload and make available
content generated by themselves
or by other users and which
includes parts of existing
projected works or other subject
matter for specific purposes of
quotation, criticism, review,
caricature, parody or pastiche.
This is particularly important
to strike a balance between
fundamental rights in theCharter of Fundamental
Rights of the European Union,nor the processing of theirpersonal data. Member Statesshould also ensure that users
have access to an independent
body for the resolution of
disputes as well as to a court oranother relevant judicial
authority to assert the use of an
exception or limitation tocopyright rules.

118

To make these mechanisms
in particular the freedom offunction, cooperation fromexpression and the freedom ofrightholders is needed, in
the arts, and the right toparticular with regard to the property, including intellectual
assessment of the complaints property. For these reasons,submitted and justifications
these exceptions should be
for the removal of users’
made mandatory in order tocontent. Member States
ensure that users receive
should remain free to put inuniform protection across theplace independent authorities Union. It is important tofor assessing the complaints
ensure that online content
submitted by users andsharing services operate an
making decisions on theireffective complaint and redress
validity. The redress
mechanism to support thesemechanism should be
uses.
without prejudice to the right The online content sharingof the parties to take action
service providers should also put
before a court.
in place effective andexpeditious complaint andredress mechanisms allowing
users to complain on the steps
taken with regard to their
uploads, in particular when they
could benefit from an exception
or limitation to copyright inrelation to an upload that isremoved or to which access is
disabled. Any complaint filed
under such mechanisms should
be processed without undue
delay and be subject to adecision by a human. When

14

15

rightholders request the services
to take action against the uploads
by users, such as disabling
access to or removing content
uploaded, the rightholders should
duly justify their requests.
Moreover, in accordance with
Directive 2002/58/EC14 andRegulation (EU)2016/67915, thecooperation should not lead toany identification of individual
users nor the processing of theirpersonal data.

Member States should also
ensure that users have access toout-of-court redress mechanisms
for the settlement of disputes.
Such mechanisms should allow
disputes to be settled impartially.
Users should also have access toa court or another relevant
judicial authority to assert theuse of an exception or limitation
to copyright rules.

ePrivacy-Directive: Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data
and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ L 201, 31.7.2002, p.
37–47.
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to theprocessing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119,4.5.2016, p. 1–88.
119

88.

89.

(39b) As soon as possible after
the entry into force of thisDirective, the Commission and
the Member States shouldorganise dialogues between
stakeholders to harmonise and to
define best practices. They
should issue guidance to ensure
the functioning of licensing
agreements and on cooperation
between online content sharing
service providers and rightholders for the use of their works
or other subject matter within themeaning of this Directive. Whendefining best practices, special
account should be taken offundamental rights, the use of
exceptions and limitations.
Special focus should also begiven to ensuring that the burden
on SMEs remains appropriate
and that automated blocking ofcontent is avoided.

(39c) Member States should
120(39b) [Renumbered - in ST
9134/18 recital (39c)]
In order to foster bestpractices with regard to themeasures to be taken by
online content sharing
service providers to avoid
liability for unauthorised
copyright acts, stakeholder
dialogues should be
encouraged by the Member
States and the Commission.
In order to give more clarity
to the parties some guidanceshould also be provided by
the Commission on theimplementation of themeasures including as towhich measures could beconsidered to be
proportionate for different
types of content. For the
purposes of the guidance theCommission should consult
relevant stakeholders,
including user organisations
and technology providers,
and take into account thedevelopments on the market.

(39b) As soon as possible after
the entry into force of thisDirective, the Commission, in
collaboration with Member
States, should organise dialogues
between stakeholders to arrive
to a uniform application of theobligation of cooperation and to
define best practices with regard
to the appropriate industry
standards of professional
diligence. For this purpose theCommission should consult
relevant stakeholders, including
user organisations andtechnology providers, and take
into account the developmentson the market. Userorganisations should also haveaccess to information on actions
carried out by online content
sharing service providers tomanage content online.

Deleted90.

ensure that an intermediatemechanism exists enabling
service providers andrightholders to find an amicable
solution to any dispute arisingfrom the terms of theircooperation agreements. To that
end, Member States should
appoint an impartial body withall the relevant competence andexperience necessary to assist theparties in the resolution of theirdispute.
(39d) As a principle,
rightholders should always
receive fair and appropriate
remuneration. Authors andperformers who have concluded
contracts with intermediaries,
such as labels and producers,
should receive fair andappropriate remuneration fromthem, either through individual
agreements and/ or collective
bargaining agreements, collective
management agreements or rules
having a similar effect, forexample joint remuneration
rules. This remuneration shouldbe mentioned explicitly in thecontracts according to each mode
121

[New, introductory recital to thewhole chapter to clarify that theprovision applies to "exploitation
contracts". The proposed text isbased on already green recitals
40 and 40a – if this is kept here,
the repetitions can be deleted
from recitals 40 and 40a.](39x) Authors and performers
tend to be in a weakercontractual position when they
grant a licence or transfer theirrights, including through theirown companies, for the purposesof exploitation in return forof exploitation, including online
exploitation. Members Statesshould look into the specificitiesof each sector and should beallowed to provide that
remuneration is deemed fair andappropriate if it is determined inaccordance with the collective
bargaining or joint remunerationagreement.

122

remuneration, and these natural
persons need certain theprotection provided for by thisDirective to be able to fully
benefit from their rights which
are harmonised under Union law.
This need does not arise when
the contractual counterpart acts
as end user and does not exploit
the work or performance itself,
which could among others be thecase in some employment
contracts.

(39y) The remuneration of
authors and performers should beappropriate and proportionate to
the actual or potential economic
value of the licensed ortransferred rights, taking into
account the author’s or
performer’s contribution to theoverall work or other subjectmatter and all othercircumstances of the case, suchas market practices or the actual
exploitation of the work.

A lump sum payment can also
constitute proportionate
remuneration but it should not

123

be the rule. Member Statesshould have the possibility,
taking into account the
specificities of each sector, todefine specific cases for theapplication of lump sums.

Members States should be free to
implement the principle ofappropriate and proportionate
remuneration through different
existing or newly-introduced
mechanisms, which may
include including collective
bargaining and statutory othermechanisms, provided that suchmechanisms are in conformity
with applicable Union law.

[Horizontal recital on freelicences – to be moved to a newrow before recital 44 in row
100](43b) Nothing in this Directive
should be interpreted as
preventing holders of exclusive
rights under Union copyright
law from authorising the use of
their works or other subjectmatter for free, including

91.

(40) Certain rightholders
such as authors and performers
need information to assess the
economic value of their rights
which are harmonised under
Union law. This is especiallythe case where suchrightholders grant a licence ora transfer of rights in return for
remuneration. As authors andperformers tend to be in aweaker contractual position
when they grant licences ortransfer their rights, they need
information to assess thecontinued economic value of
their rights, compared to the
remuneration received for theirlicence or transfer, but theyoften face a lack oftransparency. Therefore, thesharing of adequate
information by theircontractual counterparts ortheir successors in title isimportant for the transparency
and balance in the system that(40) Certain rightholders such as
authors and performers need
information to assess the
economic value of their rights
which are harmonised under
Union law. This is especially thecase where such rightholders
grant a licence or a transfer ofrights in return for remuneration.
As authors and performers tend to
be in a weaker contractual
position when they grant licencesor transfer their rights, they need
information to assess thecontinued economic value of theirrights, compared to the
remuneration received for theirlicence or transfer, but they often
face a lack of transparency.
Therefore, the sharing of adequate
comprehensive and relevant
information by their contractual
counterparts or their successors intitle is important for thetransparency and balance in thesystem that governs the
remuneration of authors and124(40) Certain rightholders
such as authors Authors andperformers need information toassess the economic value of
their rights which areharmonised under Union law.
This is especially the casewhere such rightholders
natural persons grant alicence or a transfer of rights
for the purposes of
exploitation in return for
remuneration. This need does
not arise when thecontractual counterpart acts
as end user of the work anddoes not exploit the work or
performance itself, which
could among others be thecase in some employment
contracts. Additionally, thisneed does not arise when the
exploitation has ceased, orwhen the author or
performer has granted
licence to the general publicthrough non-exclusive freelicences for the benefit of any
users, when they consider it
appropriate.

(40) Certain rightholders suchas authors Authors andperformers need information toassess the economic value of
their rights which areharmonised under Union law.
This is especially the case wheresuch rightholders natural
persons grant a licence or atransfer of rights for the
purposes of exploitation in
return for remuneration. This
need does not arise when thecontractual counterpart acts as
end of the work and does not
exploit the work or
performance itself, which
could among others be the casein some employment contracts.
Additionally, this need does
not arise when the exploitation
has ceased, or when the author
or performer has granted
licence to the general public
without remuneration.

92.

governs the remuneration of
authors and performers.

performers. The information that
authors and performers areentitled to expect should be
proportionate and cover allmodes of exploitation, direct andindirect revenue generated,
including revenues frommerchandising, and the
remuneration due. The
information on the exploitation
should also include information
about the identity of any sublicensee or sub-transferee. The
transparency obligation should
nevertheless apply only where
copyright relevant rights areconcerned.
[See Council’s recital (40a) -row
92]

125

without remuneration.

[Last two phrases of recital(40) of the COM proposal weremoved to new recital (40a) of
Council's text - see following
row 92](40a) As authors andperformers tend to be in aweaker contractual position
when they grant licences ortransfer their rights, they need
information to assess thecontinued economic value of
their rights, compared to the
remuneration received for theirlicence or transfer, but theyoften face a lack oftransparency. Therefore, the(40a) As authors andperformers tend to be in aweaker contractual position
when they grant licences ortransfer their rights, they need
information to assess thecontinued economic value of
their rights, compared to the
remuneration received for theirlicence or transfer, but they often
face a lack of transparency.
Therefore, the sharing of

126

sharing of adequate
information by theircontractual counterparts ortheir successors in title isimportant for the transparency
and balance in the system thatgoverns the remuneration of
authors and performers. The
information should be:timely to allow access torecent data; adequate toinclude information relevantto the exploitation of thework or performance in amanner that iscomprehensible to the author
or performer; and sufficient
to assess the economic valueof the rights in question. As
long as exploitation is
ongoing, contractual
counterparts of authors andperformers should provide
information available tothem on all modes of
exploitation and on all
relevant revenues with aregularity which isappropriate in the relevant
sector, but at least annually.
The processing of personaldata, such as contact details

adequate and accurate
information by their contractual
counterparts or their successors
in title is important for thetransparency and balance in thesystem that governs the
remuneration of authors andperformers. The information
should be: timely up-to-date toallow access to recent data;
adequate to include information
relevant to the exploitation of thework or performance in amanner that is comprehensible tothe author or performer; andcomprehensive to cover all
sources of revenues relevant tothe case, including, whereapplicable, merchandising
revenues sufficient to assess the
economic value of the rights inquestion. As long as exploitationis ongoing, contractual
counterparts of authors andperformers should provide
information available to them on
all modes of exploitation and on
all relevant revenues worldwide
with a regularity which isappropriate in the relevant
sector, but at least annually. The
information should be provided

93.

127

(40b) In order to ensure that
exploitation-related
information is duly provided
to authors and performers

and information on
remuneration, that arenecessary to keep authors
and performers informed on
the exploitation of theirworks and performances
should be carried out by
those who need to comply
with the transparency
obligation on the basis of
Article 6(1)(c) of Regulation(EU) 2016/679 on theprotection of natural persons
with regard to the processingof personal data and the freemovement of such data
(General Data Protection
Regulation).

(40b) In order to ensure that
exploitation-related informationis duly provided to authors andin a manner that iscomprehensible to the author or
performer and it should allow theeffective assessment of theeconomic value of the rights inquestion. The transparency
obligation should neverthelessapply only where copyright
relevant rights are concerned.
The processing of personal data,such as contact details andinformation on remuneration,that are necessary to keep
authors and performers informedon the exploitation of their works
and performances should be
carried out by those who need tocomply with the transparency
obligation on the basis of Article
6(1)(c) of Regulation (EU)2016/679 on the protection ofnatural persons with regard to
the processing of personal data
and the free movement of suchdata (General Data Protection
Regulation).

128

also in cases where the rights performers also in cases where
have been sublicensed by the the rights have been sublicensed
first contractor to otherby the first contractor to otherparties who exploit theparties who exploit the rights,
rights, this Directive entitles
this Directive entitles authors
authors and performers, inand performers, in cases wherecases where the contractual
the first contractual counterpart
partner has provided theinformation available topartner has provided thethem, but the received
information available to them,information is not sufficient
but the received information is
to assess the economic value
not sufficient to assess theof their rights, to request
economic value of their rights, toadditional relevant
request additional relevant
information on theinformation on the exploitation
exploitation of the rights.
This can be ensured eitherof the rights. This can be ensured
directly or through theeither directly from sub-licensees
contractual counterparts ofor through the contractual
authors and performers.
counterparts of authors andMember States should have
performers. Authors andthe option, in compliance
performers and their contractualwith Union law, to provide
for further measures through counterparts may agree to keep
national provisions to ensure the shared informationtransparency for authors and confidential, but authors andperformers.
performers should always havethe possibility to use the shared
information for exercising theirrights under in this Directive.
Member States should have the94.

(41) When implementing
transparency obligations, thespecificities of different
content sectors and of therights of the authors andperformers in each sector
should be considered. Member
States should consult all
relevant stakeholders as thatshould help determine sectorspecific requirements.
Collective bargaining should
be considered as an option toreach an agreement between
the relevant stakeholders
regarding transparency. To
enable the adaptation ofcurrent reporting practices tothe transparency obligations, atransitional period should be
provided for. The transparency
obligations do not need toapply to agreements concluded
with collective management(41) When implementing
transparency obligations, thespecificities of different content
sectors and of the rights of theauthors and performers in eachsector should be considered.
Member States should consult all
relevant stakeholders as thatshould help determine sectorspecific requirements. Collective
bargaining should be considered
as an option to reach an
agreement between the relevant
stakeholders regardingtransparency. To enable theadaptation of current reporting
practices to the transparency
obligations, a transitional period
should be provided for. The
transparency obligations do notneed to apply to agreements
concluded with collective
management organisations as
those are already subject to129(41) When implementing
transparency obligations,
Member States should take
into account the specificities
of different content sectors
and, such as those of the rightsof the authors and performers
in eachmusic sector should beconsidered. Member Statesshould consult, theaudiovisual sector and the
publishing sector and all
relevant stakeholders as thatshould help determinebe
involved when determining
such sector-specificrequirements. Where relevant,the significance of thecontribution of authors andperformers to the overall
work or performance should
also be considered. Collective
bargaining should beconsidered as an option to

option, in compliance with
Union law, to provide for further
measures through national
provisions to ensuretransparency for authors andperformers.

(41) When implementing
transparency obligations,
Member States should take into
account the specificities ofdifferent content sectors and,such as those of the rights of theauthors and performers ineachmusic sector should beconsidered. Member Statesshould consult, the audiovisual
sector and the publishing sector
and all relevant stakeholders asthat should help determine beinvolved when determining suchsector-specific requirements.
Where relevant, the significanceof the contribution of authors
and performers to the overall
work or performance should also
be considered. Collective
bargaining should be considered
as an option to reach an
agreement between the relevant
stakeholders regardingorganisations as those are
already subject to transparency
obligations under Directive
2014/26/EU.

transparency obligations underDirective 2014/26/EU.

130

reach an agreement between
the relevant stakeholders
regarding transparency. whichshould ensure authors andperformers the same or
higher level of transparency
as the minimum
requirements provided for inthis Directive. To enable theadaptation of current reporting
practices to the transparency
obligations, a transitional
period should be provided for.
The transparency obligations
do not need to apply toagreements concluded withcollective management
organisations andindependent management
entities or by other entities
subject to the national rules
implementing Directive
2014/26/EU as those are
already subject to transparency
obligations under Directive
2014/26/EU.

transparency. which should
ensure authors and performers
the same or higher level oftransparency as the minimum
requirements provided for in thisDirective. To enable theadaptation of current reporting
practices to the transparency
obligations, a transitional period
should be provided for. The
transparency obligations do notneed to apply in respect ofagreements concluded between
rightholders and collective
management organisations,
independent management entities
or other entities subject to thenational rules implementing
Directive 2014/26/EU as thoseorganisations 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 which manage
copyright or related rights onbehalf of more than one
rightholder for the collective
benefit of those rightholders.
However, individuallynegotiated agreements concluded
between rightholders and their

95.

(42) Certain contracts forthe exploitation of rights
harmonised at Union level areof long duration, offering few
possibilities for authors andperformers to renegotiate themwith their contractual
counterparts or their successors
in title. Therefore, without
prejudice to the law applicable
to contracts in Member States,
there should be a remuneration
adjustment mechanism forcases where the remuneration
originally agreed under alicence or a transfer of rights is
disproportionately low
compared to the relevant
revenues and the benefits
derived from the exploitationof the work or the fixation of
the performance, including inlight of the transparency
ensured by this Directive. The
assessment of the situation
should take account of the(42) Certain contracts for the
exploitation of rights harmonised
at Union level are of long
duration, offering few possibilities
for authors and performers to
renegotiate them with theircontractual counterparts or theirsuccessors in title. Therefore,
without prejudice to the law
applicable to contracts in Member
States, there should be a
remuneration adjustment
mechanism for cases where theremuneration originally agreed
under a licence or a transfer ofrights is disproportionately low
compared to the relevant direct
and indirect revenues and thebenefits derived from the
exploitation of the work or the
fixation of the performance,
including in light of thetransparency ensured by thisDirective. The assessment of thesituation should take account of
the specific circumstances of each131(42) Certain contracts forthe exploitation of rights
harmonised at Union level areof long duration, offering few
possibilities for authors andperformers to renegotiate themwith their contractual
counterparts or their successors
in title. when the economic
value of the rights turns out
to be significantly higher
than initially estimated.
Therefore, without prejudice tothe law applicable to contracts
in Member States, there should
be a remuneration adjustment
mechanism should be
provided for cases where theremuneration originally agreed
under a licence or a transfer ofrights isclearly becomesdisproportionately low
compared to the relevant
revenues and the benefits
derived from the subsequent
exploitation of the work or thecontractual partners who act intheir own interest and should be
subject to the transparency
obligation provided for in thisDirective.

(42) Certain contracts for the
exploitation of rights harmonised
at Union level are of long
duration, offering few
possibilities for authors andperformers to renegotiate themwith their contractual
counterparts or their successors
in title. when the economic valueof the rights turns out to besignificantly higher than initiallyestimated. Therefore, without
prejudice to the law applicable tocontracts in Member States,
there should be a remuneration
adjustment mechanism should be
provided for cases where theremuneration originally agreed
under a licence or a transfer ofrights isclearly becomesdisproportionately low comparedto the relevant revenues and thebenefits derived from thesubsequent exploitation of thework or the fixation of theperformance, including in lightspecific circumstances of eachcase as well as of thespecificities and practices ofthe different content sectors.
Where the parties do not agree
on the adjustment of the
remuneration, the author or
performer should be entitled tobring a claim before a court orother competent authority.

case, as well as of the specificities
and practices of the different
content sectors as well as of thenature and the contribution to
the work of the author or
performer. Such a contract
adjustment request could also bemade by the organisation
representing the author or
performer on his or her behalf,
unless the request would be
detrimental to the interests of theauthor or performer. Where theparties do not agree on theadjustment of the remuneration,
the author or performer or arepresentative organisation
appointed by them should on
request by the author or
performer be entitled to bring aclaim before a court or othercompetent authority.

132

fixation of the performance,
including in light of by thetransparency ensured by thisDirective.contractual
counterpart of the author or
performer. The assessment of
the situation should takeaccount of the specificcircumstances of each case,including the contribution of
the author or performer, as
well as of the specificities andremuneration practices of thedifferent content sectors, andwhether the contract is basedon a collective bargaining
agreement. Where the parties
do not agree on the adjustmentof the remuneration, the author
or performer should be entitledto bring a claim before a court
or other competent authority.
This mechanism should not
apply to contracts concluded
by entities defined in Article
3(a) and (b) of Directive
2014/26/EU or by otherentities subject to thenational rules implementing
Directive 2014/26/UE.

of by the transparency ensured
by this Directive.contractual
counterpart of the author or
performer. The revenues whichshould be taken into account for
the assessment of thedisproportion are all revenues
relevant to the case, including,where applicable, merchandising
revenues. The assessment of thesituation should take account of
the specific circumstances ofeach case, including thecontribution of the author or
performer, as well as of thespecificities and remuneration
practices of the different content
sectors, and whether the contract
is based on a collective
bargaining agreement.
Representatives of authors andperformers duly mandated inaccordance with national law, incompliance with Unions law,should have the possibility toprovide assistance to one ormore authors or performers inrequesting the adjustment of thecontracts, also taking into
account the interests of otherauthors or performers whenrelevant. Those representatives

96.

(43) Authors and performers (43) Authors and performers areare often reluctant to enforce
often reluctant to enforce their
their rights against theirrights against their contractual
contractual partners before apartners before a court or tribunal.
court or tribunal. Member
Member States should therefore
States should therefore provide provide for an alternative disputefor an alternative dispute
resolution procedure that
resolution procedure that
addresses claims related toaddresses claims related to
obligations of transparency andobligations of transparency and the contract adjustment
the contract adjustment
mechanism. Representative
mechanism.
organisations of authors andperformers, including collective
management organisations and133(43) Authors and performers
are often reluctant to enforce
their rights against theircontractual partners before acourt or tribunal. Member
States should therefore provide
for an alternative dispute
resolution procedure that
addresses claims by authors
and performers or theirrepresentatives on theirbehalf related to obligations oftransparency and the contract
adjustment mechanism. For

should protect the identity of therepresented authors andperformers for as long as this ispossible. Where the parties do
not agree on the adjustment of
the remuneration, the author or
performer should be entitled tobring a claim before a court orother competent authority. Thismechanism should not apply tocontracts concluded by entities
defined in Article 3(a) and (b) of
Directive 2014/26/EU or byother entities subject to thenational rules implementing
Directive 2014/26/UE.

(43) Authors and performers
are often reluctant to enforce
their rights against theircontractual partners before acourt or tribunal. Member Statesshould therefore provide for analternative dispute resolution
procedure that addresses claimsby authors and performers or
their representatives on theirbehalf related to obligations oftransparency and the contract
adjustment mechanism. For that
purpose, Member States may

97.

trade unions, should be able toinitiate such procedures at therequest of authors andperformers. Details about who
initiated the procedure should
remain undisclosed.

(43a) When authors andperformers license or transfer
their rights, they expect theirwork or performance to be
exploited. However, it happensthat works or performances thathave been licensed or transferred
are not exploited at all. Whenthese rights have beentransferred on an exclusive basis,
134

that purpose, Member States
may either create a new bodyor mechanism or rely on an
existing one that fulfils theconditions established by thisDirective irrespective ofwhether these are industryled or public, including whenincorporated in the national
judiciary system. Member
States should have flexibility
in deciding how the costs ofthe dispute resolution
procedure should beallocated. This alternative
dispute resolution procedure
should be without prejudice
to the right of parties toassert and defend their rights
by bringing an action before
a court.

either create a new body ormechanism or rely on an existing
one that fulfils the conditions
established by this Directive
irrespective of whether these areindustry-led or public, including
when incorporated in thenational judiciary system.
Member States should haveflexibility in deciding how thecosts of the dispute resolution
procedure should be allocated.
This alternative dispute
resolution procedure should be
without prejudice to the right ofparties to assert and defend theirrights by bringing an action
before a court.

(43a) When authors andperformers license or transfer
their rights, they expect theirwork or performance to be
exploited. However, it happensthat works or performances thathave been licensed or transferred
are not exploited at all. Whenthese rights have beentransferred on an exclusive basis,authors and performers cannot
turn to another partner to exploit
their work. In such a case, andafter a reasonable period of time
has lapsed, authors andperformers should have a right ofrevocation allowing them totransfer or license their right toanother person. Revocation
should also be possible when thetransferee or licensee has notcomplied with his or herreporting/transparency
obligation provided for in Article
14 of this Directive. The
revocation should only beconsidered after all the steps ofalternative dispute resolution
have been completed,particularly with regard toreporting. As exploitation ofworks can vary depending on the
sectors, specific provisions could
be taken at national level inorder to take into account the
specificities of the sectors, suchas the audiovisual sector, or of
the works and the anticipatedexploitation periods, notably
providing for time limits for theright of revocation. In order toprevent abuses and take into
135

authors and performers cannot
turn to another partner to exploit
their work. In such a case, andafter a reasonable period of time
has elapsed, authors andperformers should be able tobenefit from a mechanism for the
revocation of rights allowing
them to transfer or license theirrights to another person.
Revocation should also be
possible when the transferee or
licensee has not complied withhis or her reporting/transparency
obligation provided for in Article
14 of this Directive. The
revocation should only beconsidered after all the steps ofalternative dispute resolution
have been completed,particularly with regard toreporting. As exploitation ofworks can vary depending on the
sectors, specific provisions could
be taken at national level in orderto take into account the
specificities of the sectors, suchas the audio-visual sector, or of
the works, notably providing fortime frames for the right ofrevocation. In order to protect
the legitimate interests of

98.

99.

account that a certain amount oftime is needed before a work is
actually exploited, authors andperformers should be able toexercise the right of revocation
only after a certain period of time
following the conclusion of thelicense or of the transfer
agreement. National law should
regulate the exercise of the rightof revocation in the case of works
involving a plurality of authors
or performers, taking into
account the relative importanceof the individual contributions.

licensees and transferees ofrights and to prevent abuses, andtake taking into account that acertain amount of time is needed
before a work is actually
exploited, authors andperformers should be able toexercise the right of revocationin accordance with certain
procedural requirements andonly after a certain period oftime following the conclusion of
the license or of the transfer
agreement. National law should
regulate the exercise of the rightof revocation in the case ofworks involving a plurality ofauthors or performers, taking
into account the relative
importance of the individual
contributions.

(43a) The obligations laid[deleted](43a) The obligations laid(43b) To support the effective
application across Member Statesof the relevant provisions of thisDirective, the Commission
should, in cooperation withMember States, encourage theexchange of best practices andpromote dialogue at Union level.

136

16

down in Articles 14 and 15 ofthis Directive should be of amandatory nature andparties should not be able toderogate from thesecontractual provisions,
whether included in thecontracts between authors,performers and theircontractual counterparts orin agreements between thosecounterparts and third
parties such as nondisclosure agreements. As aconsequence, the rules set out
in Article 3(4) of theRegulation (EC) No 593/2008of the European Parliamentand of the Council16 should
apply to the effect that where
all other elements relevant tothe situation at the time of
the choice are located in one
or more Member States, theparties’ choice of applicablelaw other than that of a
Member State shall notprejudice the application of
Articles 14 and 15, as

down in Articles 14, 15 and 16of this Directive should be of amandatory nature and parties
should not be able to derogate
from these contractual
provisions, whether included in
the contracts between authors,performers and their contractual
counterparts or in agreements
between those counterparts andthird parties such as nondisclosure agreements. As aconsequence, the rules set out in
Article 3(4) of the Regulation(EC) No 593/2008 of theEuropean Parliament and of theCouncil14 should apply to theeffect that where all otherelements relevant to the situation
at the time of the choice arelocated in one or more Member
States, the parties’ choice of
applicable law other than that ofa Member State shall notprejudice the application of
Articles 14, 15 and 16, as
implemented in the Member
State of the forum.

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations(Rome I) (OJ L 177, 4.7.2008, p. 6–16).
137

101.

100.

(45) This Directive respects
the fundamental rights and(44) The objectives of thisDirective, namely themodernisation of certain
aspects of the Union copyrightframework to take account oftechnological developments
and new channels of
distribution of protected
content in the internal market,
cannot be sufficiently achieved
by Member States but canrather, by reason of their scale,effects and cross-borderdimension, be better achieved
at Union level. Therefore, theUnion may adopt measures inaccordance with the principleof subsidiarity as set out in
Article 5 of the Treaty on
European Union. In
accordance with the principle
of proportionality, as set out inthat Article, this Directive does
not go beyond what isnecessary in order to achieve
those objectives.

(44) The objectives of thisDirective, namely themodernisation of certain aspectsof the Union copyright framework
to take account of technologicaldevelopments and new channelsof distribution of protected
content in the internal market,
cannot be sufficiently achieved by
Member States but can rather, by
reason of their scale, effects andcross-border dimension, be better
achieved at Union level.
Therefore, the Union may adopt
measures in accordance with theprinciple of subsidiarity as set out
in Article 5 of the Treaty on
European Union. In accordancewith the principle ofproportionality, as set out in that
Article, this Directive does not go
beyond what is necessary in orderto achieve those objectives.

(45) This Directive respects
the fundamental rights and(44) The objectives of thisDirective, namely themodernisation of certain
aspects of the Union copyrightframework to take account oftechnological developments
and new channels of
distribution of protected
content in the internal market,
cannot be sufficiently achieved
by Member States but canrather, by reason of their scale,effects and cross-borderdimension, be better achieved
at Union level. Therefore, theUnion may adopt measures inaccordance with the principleof subsidiarity as set out in
Article 5 of the Treaty on
European Union. In accordancewith the principle ofproportionality, as set out inthat Article, this Directive does
not go beyond what isnecessary in order to achieve
those objectives.

(45) This Directive respects
the fundamental rights andobserves the principles(44) The objectives of thisDirective, namely themodernisation of certain aspectsof the Union copyrightframework to take account oftechnological developments andnew channels of distribution ofprotected content in the internalmarket, cannot be sufficiently
achieved by Member States but
can rather, by reason of theirscale, effects and cross-borderdimension, be better achieved atUnion level. Therefore, theUnion may adopt measures inaccordance with the principle ofsubsidiarity as set out in
Article 5 of the Treaty on
European Union. In accordancewith the principle ofproportionality, as set out in that
Article, this Directive does not
go beyond what is necessary inorder to achieve those objectives.

implemented in the Member
State of the forum.

(45) This Directive respects thefundamental rights and observes
138

102.

17

(46) Any processing of
personal data under thisDirective should respectfundamental rights, including
the right to respect for privateand family life and the right toprotection of personal data
under Articles 7 and 8 of theCharter of Fundamental Rightsof the European Union andmust be in compliance withobserves the principles
recognised in particular by theCharter of Fundamental Rightsof the European Union.
Accordingly, this Directive
should be interpreted andapplied in accordance withthose rights and principles.
(46) Any processing of personal
data under this Directive should
respect fundamental rights,
including the right to respect for
private and family life and theright to protection of personal data
under Articles 7 and 8 of theCharter of Fundamental Rights ofthe European Union and must be
in compliance with Directive
95/46/EC of the European
Parliament and of the Council15
Regulation (EU) 2016/679 and
Directive 2002/58/EC of theEuropean Parliament and of thethe principles recognised inparticular by the Charter ofFundamental Rights of theEuropean Union. Accordingly,
this Directive should beinterpreted and applied inaccordance with those rights andprinciples.

(46) Any processing of
personal data under thisDirective should respectfundamental rights, including
the right to respect for privateand family life and the right toprotection of personal data
under Articles 7 and 8 of theCharter of Fundamental Rightsof the European Union andmust be in compliance with
Directive 95/46/EC of theEuropean Parliament and of
the Council17 and Directive
2002/58/EC of the European

observes the principles
recognised in particular by theCharter of Fundamental Rightsof the European Union.
Accordingly, this Directive
should be interpreted andapplied in accordance withthose rights and principles.

(46) Any processing of
personal data under thisDirective should respectfundamental rights, including theright to respect for private andfamily life and the right toprotection of personal data under
Articles 7 and 8 of the Charter ofFundamental Rights of theEuropean Union and must be incompliance with Directive
95/46/EC Regulation (EU)2016/679 of the European
Parliament and of the Council
and Directive 2002/58/EC of therecognised in particular by theCharter of Fundamental Rightsof the European Union.
Accordingly, this Directive
should be interpreted and appliedin accordance with those rights
and principles.

Directive 95/46/EC of theEuropean Parliament and of
the Council15 and Directive
2002/58/EC of the European

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to theprocessing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31–50). This Directive is repealed with effectfrom 25 May 2018 and shall be replaced by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on
the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing
Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1–88).
139

103.

104.

18

19

20
21

Parliament and of theCouncil16.

(47) In accordance with the
Joint Political Declaration of
28 September 2011 of Member
States and the Commission on
explanatory documents17,
Member States haveundertaken to accompany, in

Council16 The provisions of theGeneral Data Protection
Regulation, including the "rightto be forgotten" should be
respected.
(46 a) It is important to stressthe importance of anonymity,
when handling personal data forcommercial purposes.
Additionally, the "by default" notsharing option with regards topersonal data while using online
platform interfaces should bepromoted.
(47) In accordance with the
Joint Political Declaration of 28
September 2011 of Member
States and the Commission on
explanatory documents17, Member
States have undertaken toaccompany, in justified cases, theParliament and of theCouncil18.

(47) In accordance with the
Joint Political Declaration of
28 September 2011 of Member
States and the Commission on
explanatory documents20,
Member States haveundertaken to accompany, in

European Parliament and of theCouncil19.

[deleted](47) In accordance with the
Joint Political Declaration of 28
September 2011 of Member
States and the Commission on
explanatory documents21,
Member States have undertaken
to accompany, in justified cases,
the notification of their

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and theprotection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002,
p. 37–47), called, as amended by Directives 2006/24/EC and 2009/136/EC, the “e-Privacy Directive”.
Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and theprotection of privacy in the electronic communications sector (Directive on privacy and electronic communications) (OJ L 201, 31.7.2002,
p. 37–47), called, as amended by Directives 2006/24/EC and 2009/136/EC, the “e-Privacy Directive”.
OJ C 369, 17.12.2011, p. 14.
OJ C 369, 17.12.2011, p. 14.
140justified cases, the notification notification of their transposition
justified cases, the notificationof their transposition measures measures with one or moreof their transposition measureswith one or more documents
documents explaining thewith one or more documents
explaining the relationshiprelationship between the
explaining the relationshipbetween the components of acomponents of a directive and the between the components of adirective and the corresponding corresponding parts of national
directive and theparts of national transpositiontransposition instruments. Withcorresponding parts of national
instruments. With regard to
regard to this Directive, thetransposition instruments. With
this Directive, the legislator
legislator considers theregard to this Directive, theconsiders the transmission oftransmission of such documents to legislator considers the
such documents to be justified, be justified,transmission of such
documents to be justified,141

transposition measures with one
or more documents explaining
the relationship between thecomponents of a directive andthe corresponding parts ofnational transposition
instruments. With regard to thisDirective, the legislator
considers the transmission ofsuch documents to be justified,

105.
106.

107.

LocationArt.1,
title
Art. 1, para
1

Proposal for a Directive of the European Parliament and of the Council
on copyright in the Digital Single Market
COM (2016) 593 final - 2016/0280 (COD)

POSSIBLECOMPROMISESOLUTION

ANNEX II

doc. 9134/18

TITLE I
GENERAL PROVISIONSPART 2: ARTICLESTITLE I
GENERAL PROVISIONS

Article 1
Subject matter and scope

COUNCIL TEXTTITLE I
GENERAL PROVISIONS

Article 1
Subject matter and scope

1. This Directive lays down
rules which aim at further
harmonising the Union law
applicable to copyright andrelated rights in the

EP TEXTTITLE I
GENERAL PROVISIONS

Article 1
Subject matter and scope

1.
This Directive lays
down rules which aim at
further harmonising theUnion law applicable tocopyright and related rights
in the framework of the

COMMISSIONPROPOSAL
COM(2016)593

Article 1
Subject matter and scope

1. This Directive lays
down rules which aim at
further harmonising theUnion law applicable tocopyright and related rights
in the framework of the

GREEN

1.
This Directive lays
down rules which aim at
further harmonising theUnion law applicable tocopyright and related rights
in the framework of the

1

108.

Location

Art. 1, para2

doc. 9134/18

framework of the internalmarket, taking into accountin particular digital andcross-border uses ofprotected content. It alsolays down rules on
exceptions and limitations,on the facilitation of licences
as well as rules aiming atensuring a well-functioning
marketplace for the
exploitation of works andother subject-matter.

POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT

internal market, taking into
account in particular digitaland cross-border uses ofprotected content. It alsolays down rules on
exceptions and limitations,on the facilitation oflicences as well as rules
aiming at ensuring a wellfunctioning marketplace
for the exploitation ofworks and other subjectmatter.

EP TEXT

internal market, taking into
account in particular digitaland cross-border uses ofprotected content. It alsolays down rules on
exceptions and limitations,on the facilitation oflicences as well as rules
aiming at ensuring a wellfunctioning marketplace
for the exploitation ofworks and other subjectmatter.

COMMISSIONPROPOSAL
COM(2016)593
internal market, taking into
account in particular digitaland cross-border uses ofprotected content. It alsolays down rules on
exceptions and limitations,on the facilitation oflicences as well as rules
aiming at ensuring a wellfunctioning marketplace forthe exploitation of works
and other subject-matter.
2. Except in the cases
referred to in Article 6, thisDirective shall leave intact
and shall in no way affectexisting rules laid down in
the Directives currently inforce in this area, inparticular Directives
96/9/EC, 2000/31/EC,
2001/29/EC, 2006/115/EC,
2009/24/EC, 2012/28/EU
and 2014/26/EU.

2.
Except in the cases
referred to in Article 617,
this Directive shall leave
intact and shall in no way
affect existing rules laid
down in the Directives
currently in force in thisarea, in particular Directives
96/9/EC, 2000/31/EC,
2001/29/EC, 2006/115/EC,
2009/24/EC, 2012/28/EU
and 2014/26/EU.

GREEN

2.
Except in the cases
referred to in Article 6, thisDirective shall leave intact
and shall in no way affectexisting rules laid down in
the Directives currently inforce in this area, inparticular Directives
96/9/EC, 2001/29/EC,
2006/115/EC, 2009/24/EC,
2012/28/EU and2014/26/EU.

2.
Except in the cases
referred to in Article 617,
this Directive shall leave
intact and shall in no way
affect existing rules laid
down in the Directives
currently in force in thisarea, in particular
Directives 96/9/EC,
2000/31/EC, 2001/29/EC,
2006/115/EC, 2009/24/EC,
2012/28/EU and2014/26/EU.

2

109.

Art. 2, title

Location

Article 2
Definitions

COMMISSIONPROPOSAL
COM(2016)593(1)‘researchorganisation’ means auniversity, a research
institute or any otherorganisation the primary
goal of which is to conduct
scientific research or to
conduct scientific researchand provide educational
services:

For the purposes of thisDirective, the following
definitions shall apply:

110.

Art. 2, para
1, point (a)Art. 2, para
1,
introductory partArt. 2,
introductory part

111.

112.

(a)
on a non-for-profit
basis or by reinvesting all
the profits in its scientificresearch; or

EP TEXT

Article 2
Definitions

POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT
doc. 9134/18

Article 2
Definitions(a)on a non-for-profit
basis or by reinvesting all
the profits in its scientificresearch; orGREEN(1) ‘research organisation’means a university,
including its libraries, a
research institute or any
other entity the primary goalof which is to conduct
scientific research or tocarry out educational
activities involving also the
conduct of scientificresearch:

GREEN

For the purposes of thisDirective, the following
definitions shall apply:

GREEN

Article 2
Definitions(1)‘researchorganisation’ means auniversity, a research
institute or any otherorganisationan entity, theprimary goal of which is toconduct scientific researchor to conduct scientificresearch and provide
educational services:involving also the
conduct of scientificresearch:

For the purposes of thisDirective, the following
definitions shall apply:(1) ‘research organisation’means a university,
including its libraries, a
research institute or any
other organisation the
primary goal of which is toconduct scientific researchor to conduct scientificresearch and provide
educational services:(a)on a non-for-profit
basis or by reinvesting all
the profits in its scientificresearch; or

For the purposes of thisDirective, the following
definitions shall apply:(a)on a non-for-profit
basis or by reinvesting all
the profits in its scientificresearch; or

3

113.

114.

115.

Location(b)
pursuant to a public
interest mission recognised
by a Member State;

COMMISSIONPROPOSAL
COM(2016)593

in such a way that theaccess to the results
generated by the scientificresearch cannot be enjoyedon a preferential basis byan undertaking exercising adecisive influence uponsuch organisation;

Art. 2, para
1, point (b)Art. 2, para
1, closing
phraseArt. 2, para2

(2)
‘text and data
mining’ means any
automated analyticaltechnique aiming toanalyse text and data indigital form in order togenerate information suchas patterns, trends andcorrelations;

EP TEXT(b)
pursuant to a public
interest mission recognised
by a Member State;in such a way that theaccess to the results
generated by the scientificresearch cannot be enjoyedon a preferential basis byan undertaking exercising asignificant influence uponsuch organisation;(2) 'text and data mining'means any automatedanalytical technique whichanalyses works and othersubject matter in digitalform in order to generate
information, including, but
not limited to, patterns,
trends and correlations.

4

COUNCIL TEXT
doc. 9134/18(b)pursuant to a public
interest mission recognised
by a Member State;in such a way that theaccess to the results
generated by the scientificresearch cannot be enjoyedon a preferential basis byan undertaking exercising adecisive influence uponsuch organisation;(2)‘text and data
mining’ means any
automated analyticaltechnique aiming toanalyse text and data indigital form in order togenerate information suchas patterns, trends andcorrelations;

POSSIBLECOMPROMISESOLUTION

GREEN

(b)
pursuant to a public
interest mission recognised
by a Member State;

GREEN

in such a way that the accessto the results generated by
the scientific research cannot
be enjoyed on a preferential
basis by an undertaking
exercising a significant
decisive influence uponsuch organisation;

GREEN(2) ‘text and data mining’means any automatedanalytical technique aiming
to analyse text and data indigital form in order togenerate information,
including, but not limited
to, patterns, trends andcorrelations;

116.

117.

Art. 2, para
3

Location(3)‘cultural heritage
institution’ means apublicly accessible libraryor museum, an archive or afilm or audio heritage
institution;

COMMISSIONPROPOSAL
COM(2016)593

Art. 2, para
4(4)‘press publication’means a fixation of acollection of literary works
of a journalistic nature,
which may also comprise
other works or subjectmatter and constitutes anindividual item within aperiodical or regularlyupdated publication under asingle title, such as anewspaper or a general or
special interest
magazine, having the
purpose of providing
information related to news
or other topics andpublished in any media
under the initiative,

EP TEXT(3)‘cultural heritage
institution’ means apublicly accessible libraryor museum, an archive or afilm or audio heritage
institution;(4) ‘press publication’means a fixation by
publishers or news
agencies of a collection ofliterary works of ajournalistic nature, which
may also comprise otherworks or subject-matterand constitutes anindividual item within aperiodical or regularlyupdated publication under asingle title, such as anewspaper or a general or
special interest magazine,
having the purpose ofproviding information
related to news or othertopics and published in any
5

COUNCIL TEXT
doc. 9134/18(3)‘cultural heritage
institution’ means apublicly accessible libraryor museum, an archive or afilm or audio heritage
institution;(4)‘press publication’means a fixation of acollection composed
mainly of literary works ofa journalistic nature, which:[remaining part of thispargraph was split up in
points (a) to (d) - seefollowing rows 118-121]

POSSIBLECOMPROMISESOLUTION

GREEN

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

GREEN(4) ‘press publication’means a collection
composed mainly of literaryworks of a journalistic
nature which:

118.

119.

Location

Art. 2, para
4, point (a)Art. 2, para
4, point (b)COMMISSIONPROPOSAL
COM(2016)593
editorial responsibility andcontrol of a service
provider.

EP TEXT

media under the initiative,
editorial responsibility andcontrol of a service
provider. Periodicals
which are published forscientific or academic
purposes, such as
scientific journals, shallnot be covered by thisdefinition;

6

COUNCIL TEXT
doc. 9134/18(a)
may also
compriseinclude otherworks or subject-matterand ;constitutes an[See Article 2(4) of COM
proposal and of EP text
(row 117)](b)

POSSIBLECOMPROMISESOLUTION

GREEN(a) may also include otherworks or subject matter;

GREEN

individual item within a(b) constitutes an individual
periodical or regularlyitem within a periodical or
updated publication under a regularly updated
single title, such as apublication under a single
newspaper or a general or
title, such as a newspaper or
special interest magazine, ; a general or special interest
magazine;

120.

121.

Location

Art. 2, para
4, point (c)Art. 2, para
4, point (d)COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

7

COUNCIL TEXT
doc. 9134/18[See Article 2(4) of COM
proposal and of EP text
(row 117)](c)
has having the
purpose of providing thegeneral public withinformation related to news
or other topics; and[See Article 2(4) of COM
proposal and of EP text
(row 117)](d)
is published in any
media under the initiative,
editorial responsibility andcontrol of a service
provider.;[See Article 2(4) of COM
proposal and of EP text
(row 117)]POSSIBLECOMPROMISESOLUTIONGREEN(c) has the purpose ofproviding the general publicwith information related tonews or other topics; andGREEN(d) is published in any media
under the initiative, editorial
responsibility and control ofa service provider.

Periodicals which are
published for scientific or
academic purposes, such as
scientific journals, shall not
be considered as press
publications for the purposesof this Directive.

Location
EP TEXTCOUNCIL TEXT

[Deleted]

POSSIBLECOMPROMISESOLUTION(4a) ‘out of commerce
work’ means:doc. 9134/18

122.

Art. 2, para
4a,
introductory part[Deleted]

COMMISSIONPROPOSAL
COM(2016)593

123.

Art. 2, para
4a, point (a)(a) an entire work orother subject matter in any
version or manifestationthat is no longer available
to the public in a Member
State through customarychannels of commerce;[Deleted]

124.

Art. 2, para
4a, point(b)(b) a work or othersubject matter that has
never been in commerce ina Member State, unless,from the circumstances ofthat case, it is apparent
that its author objected tomaking it available to the
public;125.

5)‘online content
sharing service provider’(4b) ‘online content
sharing service provider’(5)‘online content
sharing service provider’means a provider of anArt. 2,
para 4b8

Location(EP)/para 5(Council)COMMISSIONPROPOSAL
COM(2016)593
EP TEXTCOUNCIL TEXT
doc. 9134/18

information societymeans a provider of an
information society service service whose main or
one of the main purposes
one of the main purposes
is to store and give theof which is to store andpublic access to a large
give access to the public to amount of works or othera significant amount ofsubject-matter uploaded
copyright protected works by its users which itor other protected subject- organises and promotes
for profit-making
matter uploaded by its
purposes.
users, which the service
optimises and promotes for Providers of services suchas non-for-profit online
profit making purposes.
encyclopaedias, non-forprofit educational andscientific repositories,
non-for-profit open
source softwaredeveloping platforms, aswell as internet accessservice providers, online
marketplaces andproviders of cloudservices which allow
users, including
businesses for theirinternal purposes, toupload content for their
Microenterprises andsmall-sized enterprises
within the meaning ofTitle I of the Annex toCommission
Recommendation
2003/361/EC and services
acting in a noncommercial purpose
capacity such as online
encyclopaedia, andproviders of online

9

POSSIBLECOMPROMISESOLUTION

means a provider of an
information society service
whose main or one of themain purposes is to store andgive the public access to alarge amount of copyrightprotected works or otherprotected subject-matter
uploaded by its users which
it organises and promotes
for profit-making purposes.

[EP: Microenterprises andsmall-sized enterprises
within the meaning of Title Iof the Annex to Commission
Recommendation
2003/361/EC] Pproviders ofservices such as not-for
profit online encyclopedias,
not-for profit educationaland scientific repositories,
open source softwaredeveloping and sharing
platforms, electronicLocation
COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

services where the content
is uploaded with theauthorisation of all rightholders concerned, suchas educational or scientificrepositories, shall not be
considered online content
sharing service providers
within the meaning of thisDirective. Providers ofcloud services forindividual use which do
not provide direct access tothe public, open source
software developing
platforms, and online
market places whose main
activity is online retail ofphysical goods, should not
be considered online
content sharing service
providers within themeaning of this Directive;

10

COUNCIL TEXT
doc. 9134/18

POSSIBLECOMPROMISESOLUTION

communication service
own use shall not be
considered online content providers as defined in the
sharing service providers new Telecom Code Directive
within the meaning of this
2018/1972 establishing the
Directive;
European Electronic
Communication Code,online marketplaces andbusiness-to business cloudservices and cloud services
which allow users to upload
content for their own use
shall not be considered
online content sharing
service providers within themeaning of this Directive.

126.

127.

Location

Art. 2,
para 4c(EP)/para 6(Council)Art. 2, para
4d

COMMISSIONPROPOSAL
COM(2016)593
EP TEXT(4c) ‘information society
service’ means a service
within the meaning ofpoint (b) of Article 1(1) of
Directive (EU) 2015/1535
of the European
Parliament and of theCouncil1a;___________
1a Directive (EU)2015/1535 of theEuropean Parliament andof the Council of 9
September 2015 laying
down a procedure for theprovision of informationin the field of technicalregulations and of rules
on Information Society
services (OJ L 241,17.9.2015, p. 1).

(4d) ‘automated image
referencing service’ means
any online service which
reproduces or makes
11

COUNCIL TEXT
doc. 9134/18(6) ‘information society
service’ means a service
within the meaning of
Article 1(1)(b) of
Directive (EU) 2015/1535.

POSSIBLECOMPROMISESOLUTION

GREEN(6) ‘information society
service’ means a service
within the meaning of
Article 1(1)(b) of Directive(EU) 2015/15351a.

___________

1aDirective (EU) 2015/1535
of the European Parliamentand of the Council of 9
September 2015 laying down
a procedure for theprovision of information in
the field of technicalregulations and of rules on
Information Society services(OJ L 241, 17.9.2015, p. 1).

Deleted

128.

129.

130.

Location

Art. 3,
title

Art. 3, para
1

EP TEXTCOUNCIL TEXT
doc. 9134/18

TITLE IIMEASURES TO ADAPTEXCEPTIONS AND
LIMITATIONS TO THE
DIGITAL AND CROSSBORDERENVIRONMENTCOMMISSIONPROPOSAL
COM(2016)593

TITLE IIMEASURES TO ADAPTEXCEPTIONS AND
LIMITATIONS TO THE
DIGITAL AND CROSSBORDERENVIRONMENT

available to the public forindexing and referencing
purposes graphic or art
works or photographic
works collected byautomated means via athird-party online service.
TITLE IIMEASURES TO ADAPTEXCEPTIONS AND
LIMITATIONS TO THE
DIGITAL AND CROSSBORDERENVIRONMENT

Article 3
Text and data mining

1.
.Member Statesshall provide for an
exception to the rights
provided for in Article 2 ofDirective 2001/29/EC,
Articles 5(a) and 7(1) of

Article 3
Text and data mining

1. Member States shallprovide for an exception to
the rights provided for in
Article 2 of Directive
2001/29/EC, Articles 5(a)and 7(1) of Directive

Article 3
Text and data mining forthe purposes of scientificresearch

1.
Member States shallprovide for an exception to
the rights provided for in
Article 2 of Directive
2001/29/EC, Articles 5(a)and 7(1) of Directive

12

TITLE IIMEASURES TO ADAPTEXCEPTIONS AND
LIMITATIONS TO THE
DIGITAL AND CROSSBORDER ENVIRONMENTPOSSIBLECOMPROMISESOLUTION

GREEN

Article 3
Text and data mining for the
purposes of scientificresearch

GREEN

1. Member States shallprovide for an exception to
the rights provided for in
Article 2 of Directive
2001/29/EC, Articles 5(a)Location
COMMISSIONPROPOSAL
COM(2016)593
96/9/EC and Article 11(1)of this Directive forreproductions andextractions made byresearch organisations inorder to carry out text anddata mining of works orother subject-matter towhich they have lawfulaccess for the purposes ofscientific research.

EP TEXT

96/9/EC and Article 11(1)of this Directive forreproductions andextractions made byresearch organisations inorder to carry out text anddata mining of works orother subject-matter towhich they have lawfulaccess researchorganisations have lawfulaccess and made in orderto carry out text and data
mining for the purposes ofscientific research by suchorganisations.
Member States shallprovide for educational
establishments andcultural heritage
institutions conducting
scientific research within
the meaning of point(1)(a) or (1)(b) of Article
2, in such a way that theaccess to the results
generated by the scientificresearch cannot be
13doc. 9134/18

and 7(1) of Directive
96/9/EC and Article 11(1) of
this Directive forreproductions andextractions made by researchorganisations and cultural
heritage institutions in orderto carry out text and data
mining of works or othersubject-matter to which they
have lawful access, for the
purposes of scientificresearch.

POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT

Directive 96/9/EC and
Article 11(1) of thisDirective for reproductions
and extractions made byresearch organisations andcultural heritage
institutions in order tocarry out text and data
mining of works or othersubject-matter to which
they have lawful access, forthe purposes of scientificresearch.

131.

132.

Location

Art. 3, para
1aArt. 3, para
2

COMMISSIONPROPOSAL
COM(2016)593

2.
Any contractual
provision contrary to the
exception provided for inparagraph 1 shall be
unenforceable.

POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT
doc. 9134/18

1a. Copies of works or othersubject-matter made incompliance with paragraph1 shall be stored with anappropriate level of security
and may be retained for the
purposes of scientificresearch, including for theverification of research
results.

EP TEXT

1a.Copies of works orother subject-mattermade in compliancewith paragraph 1 shallbe stored with anappropriate level of
security and not beretained for longer
than necessary forachieving the purposesof scientific research.

GREEN

enjoyed on a preferential
basis by an undertaking
exercising a decisive
influence upon suchorganisations, to also beable to benefit from theexception provided for inthis Article.
1a.
Reproductions andextractions made for text
and data mining purposes
shall be stored in a securemanner, for example bytrusted bodies appointed
for this purpose.

2. [Moved to Article 6(1)][Moved to Article 6(1)]

GREEN

2.
Any contractual
provision contrary to the
exception provided for inparagraph 1 shall be
unenforceable.

14

133.

134.

Location

Art. 3, para
3

Art. 3, para
4

COMMISSIONPROPOSAL
COM(2016)593

3.
Rightholders shallbe allowed to apply
measures to ensure thesecurity and integrity of the
networks and databases
where the works or othersubject-matter are hosted.
Such measures shall not go
beyond what is necessary
to achieve that objective.

EP TEXT[See Council’s Article 6(1)(row 155)]
3.
Rightholders shallbe allowed to apply
measures to ensure thesecurity and integrity of the
networks and databases
where the works or othersubject-matter are hosted.
Such measures shall not go
beyond what is necessary
to achieve that objective.

4.
Member States shall 4.
Member Statesencourage rightholders and shall encourage
research organisations torightholders and researchdefine commonly-agreed
organisations to define
best practices concerningcommonly-agreed best
the application of thepractices concerning themeasures referred to in
application of the measuresparagraph 3.
referred to in paragraph
3.may continue to provide
text and data mining
exceptions in accordance
15

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3.
Rightholders shallbe allowed to apply
measures to ensure thesecurity and integrity of the
networks and databases
where the works or othersubject-matter are hosted.
Such measures shall not go
beyond what is necessary
to achieve that objective.

4.
Member Statesshall encouragerightholders and, researchorganisations and cultural
heritage institutions todefine commonly-agreed
best practices concerning
the application of theobligation and measuresreferred to respectively inparagraphs 1a and 3.

POSSIBLECOMPROMISESOLUTION

GREEN

3.
Rightholders shall beallowed to apply measures
to ensure the security andintegrity of the networks anddatabases where the works
or other subject-matter are
hosted. Such measures shallnot go beyond what isnecessary to achieve that
objective.

GREEN

4.
Member States shallencourage rightholders and,research organisations andcultural heritage institutions
to define commonly-agreed
best practices concerning theapplication of the obligationand measures referred torespectively in paragraphs
1a and 3.

135.

136.

Location

Art. 3a, title

Art. 3a,para 1COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

with point (a) of Article
5(3) of Directive
2001/29/EC.

Article 3a

COUNCIL TEXT
doc. 9134/18

Article 3a

POSSIBLECOMPROMISESOLUTION[the relation with existing
exceptions under InfoSoc
Directive under Article 17a(see row 306)]

Article 3a

1. Without prejudice to
Article 3 of this Directive,
Member States may/shallprovide for an exception ora limitation to the rights
provided for in Article 2 ofDirective 2001/29/EC,
Articles 5(a) and 7(1) of
Directive 96/9/EC, Article
4(1)(a) and (b) of Directive
2009/24/EC and Article
11(1) of this Directive fortemporary reproductions
and extractions of lawfully
accessible works and other

Optional exception or
Optional exception or
Optional eException orlimitation for text and data limitation for text and data limitation for text and data
miningminingmining1.
Without prejudice 1.
Without prejudice
to Article 3 of thisto Article 3 of thisDirective Member States
Directive, Member States
may provide for an
may provide for an
exception or a limitation
exception or a limitation to to the rights provided forthe rights provided for inin Article 2 of Directive
Article 2 of Directive
2001/29/EC, Articles 5(a)and 7(1) of Directive
2001/29/EC, Articles 5(a)96/9/EC and Article 11(1)and 7(1) of Directive
96/9/EC and Article 11(1) of this Directive fortemporary reproductionsof this Directive forand extractions ofreproductions andlawfully accessible works
extractions of lawfully
and other subject-matter
accessible works and other that form a part of thesubject-matter that form a
16

137.

138.

Location

Art. 3a,para 2 (EP)Art. 3a,para 2(Council)COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

part of the process of text
and data mining, provided
that the use of works andother subject matter
referred to therein has notbeen expressly reserved bytheir rightholders,
including by machinereadable means.
2.
Reproductions andextractions made pursuant
to paragraph 1 shall not be
used for purposes otherthan text and data mining.

17

COUNCIL TEXT
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process of text and data
mining.

POSSIBLECOMPROMISESOLUTION

subject-matter that form apart of the process for the
purposes of text and data
mining.

GREEN

2.
Reproductions andextractions made pursuant
to paragraph 1 may beretained as long asnecessary for the purposesof text and data mining.

2.
The exception orGREEN
limitation provided for inparagraph 1 shall apply
provided that the use ofworks and other subject
matter referred to therein

139.

140.

Location

Art. 3a,para 3Art. 4,
title

COMMISSIONPROPOSAL
COM(2016)593

Article 4
Use of works and othersubject-matter in digital

EP TEXT

3.
Member States may
continue to provide text
and data mining
exceptions in accordancewith point (a) of Article 5(3) of Directive
2001/29/EC.

Article 4
Use of works and othersubject-matter in digital
18

COUNCIL TEXT
doc. 9134/18

has not been expressly
reserved by theirrightholders including bytechnical means.
[See para. 1 of EP text
(row 136)]

Article 4
Use of works and othersubject-matter in digital

POSSIBLECOMPROMISESOLUTION2.
The exception orlimitation provided for inparagraph 1 shall apply
provided that the use ofworks and other subject
matter referred to therein
has not been expressly
reserved by theirrightholders in an
appropriate manner, suchas machine readable means
for the content madepublicly available online.

GREEN

3. This Article shall notaffect the application of
Article 3 of this Directive.

[This phrase replaces the'Without prejudice'clarification previously
contained in paragraph 1.]

Article 4
Use of works and othersubject-matter in digital and

141.

142.

(a) takes place under the
responsibility of an

GREEN

(a)
takes place
onunder the premises
responsibility of an

COUNCIL TEXTPOSSIBLECOMPROMISESOLUTIONEP TEXT

doc. 9134/18

cross-border teachingactivities

Locationand cross-border teachingactivities

1. Member States shallprovide for an exception orlimitation to the rights
provided for in Articles 2
and 3 of Directive
2001/29/EC, Articles 5(a),(b), (d) and (e) and 7(1) of
Directive 96/9/EC, Article
4(1)(a), and (b) of Directive
2009/24/EC and Article
11(1) of this Directive inorder to allow the digital use
of works and other subjectmatter for the sole purposeof illustration for teaching,to the extent justified by the
non-commercial purpose to
be achieved, provided thatsuch use:

COMMISSIONPROPOSAL
COM(2016)593
and cross-border teachingactivities

1.
Member Statesshall provide for an
exception or limitation to
the rights provided for in
Articles 2 and 3 ofDirective 2001/29/EC,
Articles 5(a), (b), (d) and(e) and Article 7(1) of
Directive 96/9/EC, Article
4(1)(a) and (b) of
Directive 2009/24/EC and
Article 11(1) of thisDirective in order to allow
for the digital use of works
and other subject-matter forthe sole purpose ofillustration for teaching, tothe extent justified by the
non-commercial purpose to
be achieved, provided that
thesuch use:and cross-border teachingactivities

Art. 4, para
1

1.
Member States shall 1.
Member States
provide for an exception or shall provide for anlimitation to the rights
exception or limitation toprovided for in Articles 2
the rights provided for inand 3 of Directive
Articles 2 and 3 of
2001/29/EC, Articles 5(a)Directive 2001/29/EC,
and 7(1) of Directive
Articles 5(a) and 7(1) of
96/9/EC, Article 4(1) of
Directive 96/9/EC, Article
Directive 2009/24/EC and4(1) of Directive
Article 11(1) of this
2009/24/EC and Article
Directive in order to allow 11(1) of this Directive infor the digital use of works order to allow for theand other subject-matter for digital use of works andthe sole purpose ofother subject-matter for theillustration for teaching, to sole purpose of illustration
the extent justified by thefor teaching, to the extent
non-commercial purpose to justified by the nonbe achieved, provided thatcommercial purpose to be
the use:achieved, provided that theuse:(a)takes place on thepremises of an educational
establishment, or in any

GREENArt. 4, para
1, point (a)(a)
takes place on thepremises of an educational
establishment or through a

19

143.

144.

Location
COMMISSIONPROPOSAL
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secure electronic network
accessible only by theeducational establishment's
pupils or students andteaching staff;

EP TEXT

Art. 4, para
1, point (b)(b)
is accompanied by(b)is accompanied by
the indication of the source, the indication of the source,
including the author's
including the author's
name, unless this turns out name, unless this turns out
to be impossible.
to be impossible forreasons of practicability.

other venue in which theteaching activity takes
place under the
responsibility of theeducational establishment,or through a secure
electronic network
environment accessible
only by the educational
establishment's pupils or
students and teaching staff;

Art. 4, para
2, subpara 1

2.
Member States may
provide that the exception
adopted pursuant toparagraph 1 does not apply
generally or as regards
specific types of works orother subject-matter, suchas material which isprimarily intended for the2.
Member States may
provide that the exception
adopted pursuant toparagraph 1 does not apply
generally or as regards
specific types of works orother subject-matter, to theextent that adequate
licences authorising the20

doc. 9134/18

educational establishment,on its premises or othervenues, or through a secure
electronic environment
accessible only by theeducational establishment's
pupils or students andteaching staff; and

POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT

educational establishment,on its premises or othervenues, or through a secure
electronic network
accessible only by theeducational establishment's
pupils or students andteaching staff; and2. Notwithstanding Article
6(1), Member States may
provide that the exception
adopted pursuant toparagraph 1 does not apply
generally or as regards
specific uses or types ofworks or other subject-

GREEN

(b)
is accompanied by
GREEN
the indication of the source, (b) is accompanied by the
including the author's
indication of the source,
name, unless this turns out
including the author's name,to be impossible.
unless this turns out to be
impossible.

2.
Notwithstanding
Article 6(1), Member
States may provide that the
exception adopted pursuant
to paragraph 1 does not
apply generally or as
regards specific uses ortypes of works or othersubject-matter, to the

145.

146.

Location
EP TEXTCOUNCIL TEXT
doc. 9134/18

educational market or
sheet music, to the extent
that adequate licences
licencing agreements
authorising the acts
described in paragraph 1
and tailored to the needs
and specificities of
educational establishments
are easily available in themarket.

COMMISSIONPROPOSAL
COM(2016)593
acts described in paragraph
1 are easily available in themarket.

Member States availingthemselves of the provisionof the first subparagraphshall take the necessary
measures to ensure
appropriate availability andvisibility of the licences
authorising the acts
described in paragraph 1
for educational
establishments.

extent that adequate
licences covering theneeds of educational
establishments andauthorising the acts
described in paragraph 1
are easily available in themarket.

Art. 4, para
2, sub-para
2

Member States availingthemselves of the provisionof the first subparagraphshall take the necessary
measures to ensure
appropriate availability andvisibility of the licences
authorising the acts
described in paragraph 1
for educational
establishments.

Member States availingthemselves of the provisionof the first subparagraphshall take the necessary
measures to ensure
appropriate availability andvisibility ofthat
rightholders make thelicences authorising theacts described in paragraph
1 available and visible foreducational establishments.

Art. 4, para
3

3.
The use of works
3.
The use of works
3.
The use of works
and other subject-matter for and other subject-matter for and other subject-matterthe sole purpose of
the sole purpose offor the sole purpose of
21

POSSIBLECOMPROMISESOLUTION

matter, such as material
which is primarily intended
for the educational market
or sheet music, to the extent
that suitable licences
authorising the acts
described in paragraph 1
covering the needs andspecificities of educational
establishments are easily
available in the market.

GREEN

Member States availingthemselves of the provisionof the first subparagraphshall take the necessary
measures to ensure
appropriate availability andvisibility of the licences
authorising the acts
described in paragraph 1 foreducational establishments.

GREEN

3. The use of works andother subject-matter for the

147.

148.

Location

Art. 4, para
4

Art. 4, para
4adoc. 9134/18

sole purpose of illustration
for teaching through secure
electronic environments
undertaken in compliancewith the provisions ofnational law adopted
pursuant to this Article shallbe deemed to occur solely in
the Member State where theeducational establishment isestablished.

POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT

illustration for teaching
through secure electronic
networks undertaken incompliance with theprovisions of national law
adopted pursuant to this
Article shall be deemed tooccur solely in the Member
State where the educational
establishment isestablished.

EP TEXT

illustration for teaching
through secure electronic
networks environments
undertaken in compliancewith the provisions ofnational law adopted
pursuant to this Article
shall be deemed to occur
solely in the Member State
where the educational
establishment isestablished.

4.
Member States may
provide for faircompensation for the harm
incurred by theto
rightholders due to the useof their works or othersubject-matter pursuant toparagraph 1.

COMMISSIONPROPOSAL
COM(2016)593
illustration for teaching
through secure electronic
networks undertaken incompliance with theprovisions of national law
adopted pursuant to this
Article shall be deemed tooccur solely in the Member
State where the educational
establishment isestablished.

4.
Member States
may provide for faircompensation for the harm
incurred by the rightholders
due to the use of theirworks or other subjectmatter pursuant toparagraph 1.

[as regards the provision on
royalty free licences:agreement on having instead[contractual override dealt
with under Article 6(1)]4.
Member States may
provide for faircompensation for the harm
incurred by the torightholders due to the useof their works or othersubject-matter pursuant toparagraph 1.

GREEN

4.
Member States may
provide for faircompensation for the harm
incurred by the rightholders
due to the use of theirworks or other subjectmatter pursuant toparagraph 1.

4a.
Without prejudice
to paragraph 2, any
contractual provisioncontrary to the exception
or limitation adopted
22

Location
EP TEXTCOUNCIL TEXT
doc. 9134/18

POSSIBLECOMPROMISESOLUTION

a general recital on freelicences: see recital 43b,row 90 final part]

Article 5
Preservation of cultural
heritage

COMMISSIONPROPOSAL
COM(2016)593
pursuant to paragraph 1
shall be unenforceable.
Member States shallensure that rightholders
have the right to grantroyalty-free licences
authorising the acts
described in paragraph 1,
generally or as regards
specific types of works orother subject-matter thatthey may choose.

Article 5
Preservation of cultural
heritage

1. Member States shallprovide for an exception to
the rights provided for in
Article 2 of Directive
2001/29/EC, Articles 5(a)and 7(1) of Directive
96/9/EC, Article 4(1)(a) of
Directive 2009/24/EC and[See Council’s Article 6(1)(row 155)]
Article 5
Preservation of cultural
heritage

Member States shallprovide for an exception to
the rights provided for in
Article 2 of Directive
2001/29/EC, Articles 5(a)and 7(1) of Directive
96/9/EC, Article 4(1)(a) of
Directive 2009/24/EC and
Article 11(1) of thisArt. 5, title

149.

Article 5
Preservation of cultural
heritage

1.
Member Statesshall provide for an
exception to the rights
provided for in Article 2 ofDirective 2001/29/EC,
Articles 5(a) and 7(1) of
Directive 96/9/EC, Article
4(1)(a) of Directive
2009/24/EC and Article

GREEN

150.

Art. 5, [para Member States shall
1 (EP)]
provide for an exception to
the rights provided for in
Article 2 of Directive
2001/29/EC, Articles 5(a)and 7(1) of Directive
96/9/EC, Article 4(1)(a) of
Directive 2009/24/EC and
Article 11(1) of this

23

151.

Location

Art. 5, para
1a

COMMISSIONPROPOSAL
COM(2016)593
Directive, permitting
cultural heritage
institutions, to make copies
of any works or othersubject-matter that arepermanently in theircollections, in any format
or medium, for the sole
purpose of the preservationof such works or othersubject-matter and to theextent necessary for suchpreservation.

EP TEXT

11(1) of this Directive,
permitting cultural heritage
institutions to make copies
of any works or othersubject-matter that arepermanently in theircollections, in any format
or medium, for the sole
purpose purposes ofpreservation of such works
or other subject-matter andto the extent necessary forsuch preservation.
1a.
Member Statesshall ensure that any
material resulting from an
act of reproduction ofmaterial in the publicdomain shall not be
subject to copyright or
related rights, provided
that such reproduction is afaithful reproduction for
purposes of preservationof the original material.

24

COUNCIL TEXT
doc. 9134/18

Directive, permitting
cultural heritage
institutions, to make copies
of any works or othersubject-matter that arepermanently in theircollections, in any format
or medium, for the sole
purpose of the preservationof such works or othersubject-matter and to theextent necessary for suchpreservation.

POSSIBLECOMPROMISESOLUTION

Article 11(1) of thisDirective, permitting
cultural heritage institutions
to make copies of any works
or other subject-matter thatare permanently in theircollections, in any format or
medium, for purposes ofpreservation of such works
or other subject-matter andto the extent necessary forsuch preservation.

1a.
Member States shallprovide that, when the termof protection of a work ofvisual art has expired, anymaterial resulting from an
act of reproduction of thatwork shall not be subject tocopyright or related rights,
unless the material
resulting from that act ofreproduction is original in
the sense that it is theauthor's own intellectual
creation.

152.

153.

154.

Location

Art. 5, para
1bArt. 6,
title
Art. 6, para
1 (EP)COMMISSIONPROPOSAL
COM(2016)593

Article 6
Common provisions

EP TEXT

1b. Any contractual
provision contrary to the
exception provided for inparagraph 1 shall be
unenforceable.
[See Council’s Article 6(1)(row 155)]
Article 6
Common provisions
1.
Accessing content
covered by an exception
provided for in thisDirective shall not confer
on users any entitlement to25

COUNCIL TEXT
doc. 9134/18

Article 6
Common provisions

POSSIBLECOMPROMISESOLUTION[as the text set out above is
not about an exception,
Trilogue of 11.02 agreed toplace it outside Article 5/
into as separate provision
after Article 10 Negotiation
mechanism; see new
Article 10b, in new rows
214A and 214B]

GREEN[contractual override dealt
with under Article 6(1)]Article 6
Common provisions

GREEN

Deleted

155.

156.

Location

Art. 6, para
1 (Council)

Art. 6, para
2

COMMISSIONPROPOSAL
COM(2016)593

Article 5(5) and the first,
third and fifth
subparagraphs of Article
6(4) of Directive
2001/29/EC shall apply tothe exceptions and thelimitation provided forunder this Title.

EP TEXT

use it pursuant to anotherexception.

2.
Article 5(5) and thefirst, third, fourth and fifth
subparagraphs of Article
6(4) of Directive
2001/29/EC shall apply tothe exceptions and thelimitation provided forunder this Title.

26

COUNCIL TEXT
doc. 9134/18

POSSIBLECOMPROMISESOLUTION

2. Article 5(5) of Directive
2001/29/EC shall apply to the
exceptions and the limitation
provided for under this Title.
The first, third and fifth
subparagraphs of Article 6(4) of
Directive 2001/29/EC shallapply to Articles 3, 3a, 4 and 5of the exceptions and thelimitations provided for in thisDirective.

[provisionally agreed attrilogue 25/10/2018]1.
Any contractual
GREEN
provision contrary to the1.
Any contractual provision
exceptions provided for incontrary to the exceptions
Articles 3, 4(1) and 5 shall provided for in Articles 3, 4
be unenforceable.
and 5 shall be
unenforceable.

[See Article 3(2) of the
COM proposal andParliament’s Articles 3(2)and 4(4a) and 5(1b)]2.
Article 5(5) andtheof Directive
2001/29/EC shall apply tothe exceptions and thelimitation provided forunder this Title. The first,
third and fifth
subparagraphs of Article
6(4) of Directive
2001/29/EC shall apply tothe exceptionsArticles 3,4(1) and the limitation

EP TEXTCOUNCIL TEXTMEASURES TO
IMPROVE LICENSING
PRACTICES AND
ENSURE WIDER ACCESSTO CONTENTPOSSIBLECOMPROMISESOLUTION

TITLE IIIMEASURES TO
IMPROVE LICENSING
PRACTICES AND
ENSURE WIDERACCESS TO CONTENT

CHAPTER 1
Out-of-commerce works

Locationdoc. 9134/18

TITLE IIIMEASURES TO
IMPROVE LICENSING
PRACTICES AND
ENSURE WIDERACCESS TO CONTENT

CHAPTER 1
Out-of-commerce works

COMMISSIONPROPOSAL
COM(2016)593

TITLE IIIMEASURES TO
IMPROVE LICENSING
PRACTICES AND
ENSURE WIDERACCESS TO CONTENT

CHAPTER 1
Out-of-commerce works

Article 7
Use of out-of-commerce
works by cultural heritage
institutions

provided for under5 of thisTitleDirective.
157.

CHAPTER 1
Out-of-commerce works

Article 7
Use of out-of-commerce
works by cultural heritage
institutions

1.
Member States shallprovide that a collective
management organisation, in
accordance with its
mandates, may conclude a
non-exclusive licence fornon-commercial purposeswith a cultural heritage
institution for the

160.

TITLE III

158.
Art. 7, title

Article 7
Use of out-of-commerce
works by cultural heritage
institutions

1.
Member Statesshall provide that when acollective management
organisation, on behalf ofin accordance with its
members,concludesmandates, may
conclude a non-exclusive
licence for non-commercial
purposes with a cultural

159.

Article 7
Use of out-of-commerce
works by cultural heritage
institutions

1.
Member Statesshall provide that when acollective management
organisation, on behalf of
its members, concludes a
non-exclusive licence fornon-commercial purposeswith a cultural heritage
institution for thedigitisation, distribution,

GREEN

Art. 7, para
1,
introductory part1.
Member States shallprovide that when acollective management
organisation, on behalf of
its members, concludes a
non-exclusive licence fornon-commercial purposeswith a cultural heritage
institution for thedigitisation, distribution,

27

161.

Location

Art. 7, para
1, point (a)EP TEXTCOUNCIL TEXT
doc. 9134/18

communication to theheritage institution for the
public or making available digitisationreproduction,of out-of-commerce works distribution,or other subject-matter
communication to thepermanently in the
public or making available
collection of the institution, to the public of out-ofsuch a non-exclusive
commerce works or otherlicence may be extended or subject-matter permanently
presumed to apply toin the collection of therightholders of the same
institution, such a noncategory as those covered
exclusive licence may beby the licence who are notextended or presumed torepresented by theapply to rightholders of thecollective management
same category as thoseorganisation, provided that: irrespective of whether all
rightholders covered by
the licence who are notrepresented byhave
mandated the collective
management organisation,
provided that:

COMMISSIONPROPOSAL
COM(2016)593
communication to the
public or making availableof out-of-commerce works
or other subject-matter
permanently in thecollection of the institution,such a non-exclusive
licence may be extended orpresumed to apply torightholders of the same
category as those coveredby the licence who are notrepresented by thecollective management
organisation, provided that:(a)the collective
management organisationis, on the basis of mandates
from rightholders, broadly
representative ofrightholders in the category(a)the collective
management organisationis, on the basis of mandates
from rightholders,broadlysufficiently
representative of(a)the collective
management organisationis, on the basis of mandates
from rightholders, broadly
representative ofrightholders in the category

28

POSSIBLECOMPROMISESOLUTION

reproduction, distribution,communication to the public
or making available to the
public of out-of-commerce
works or other subjectmatter permanently in thecollection of the institution,
irrespective of whether all
rightholders covered by thelicence have mandated thecollective management
organisation, provided that:

GREEN

(a)
the collective
management organisation is,on the basis of mandates
from rightholders,sufficiently representative of

162.

163.

Location
EP TEXTCOUNCIL TEXT

rightholders in the relevant
type of works or othersubject-matter and of therights which are the subjectof the licence;

POSSIBLECOMPROMISESOLUTION

rightholders in the
categoryrelevant type ofworks or other subjectmatter and of the rights
which are the subject of thelicence;(b)equal treatment isguaranteed to allrightholders in relation to
the terms of the licence.

doc. 9134/18
of works or other subjectmatter and of the rights
which are the subject of thelicence;(b)equal treatment isguaranteed to allrightholders in relation to
the terms of the licence;

COMMISSIONPROPOSAL
COM(2016)593(b)equal treatment isguaranteed to allrightholders in relation to
the terms of the licence;of works or other subjectmatter and of the rights
which are the subject of thelicence;Art. 7, para
1, point (b)(b)
equal treatment isguaranteed to allrightholders in relation to
the terms of the licence;[This point is moved to newparagraph 1b below – row
167]

GREEN

Art. 7, para
1, point (c)(c)
all rightholders may
at any time object to theirworks or other subjectmatter being deemed to beout of commerce andexclude the application of
the licence to their works
or other subject-matter.

(c)
all rightholders may (c)all rightholders may
at any time object to theirat any time object
works or other subjecttoexclude the possibility
matter being deemed to be
for collective
out of commerce andmanagement
exclude the application oforganisations to license
the licence to their works
their works or otheror other subject-matter.
subject-matter being
deemed to be out ofcommerce and inaccordance with this
Article, either in general
or in specific cases, or
exclude the application oftheany licence granted inaccordance with this
29

164.

165.

Location
EP TEXT

Art. 7, para
1a1a.
Member Statesshall provide for an
exception or limitation to
the rights provided for in
Articles 2 and 3 ofDirective 2001/29/EC,
Articles 5(a) and 7(1) of
Directive 96/9/EC, Article
4(1) of Directive
2009/24/EC, and Article
11(1) of this Directive,
permitting cultural
heritage institutions tomake copies available
online of out-of-commerce
works that are locatedpermanently in theircollections for not-forprofit purposes, provided
that:

COMMISSIONPROPOSAL
COM(2016)593

Art. 7, para
1a, point (a)(a)
the name of theauthor or any otheridentifiable rightholder is

30

COUNCIL TEXT
doc. 9134/18

Article to their works orother subject-matter.

POSSIBLECOMPROMISESOLUTION

GREEN

1a.
Member States shallprovide for an exception orlimitation to the rights
provided for in Articles 2
and 3 of Directive
2001/29/EC, Articles 5(a),(b), (d) and (e) and 7(1) of
Directive 96/9/EC, Article
4(1) of Directive
2009/24/EC, and Article
11(1) of this Directive, inorder to allow cultural
heritage institutions to makeavailable out-of-commerce
works or other subjectmatter that are permanently
in their collections for noncommercial purposes,
provided that:

GREEN

(a)
the name of theauthor or any otheridentifiable rightholder is

166.

167.

Location
EP TEXTCOUNCIL TEXTPOSSIBLECOMPROMISESOLUTION

indicated, unless this turns
out to be impossible;

doc. 9134/18
indicated, unless this turns
out to be impossible;[Text of EP covered in newparagraph 1b below – row
167]

COMMISSIONPROPOSAL
COM(2016)593

Art. 7, para
1a, point(b)(b)
all rightholders
may at any time object totheir works or othersubject-matter being
deemed to be out ofcommerce and exclude theapplication of the
exception to their works orother subject-matter.

1c. Member States shallprovide that all rightholders
may at any time, easily and1b. Member States shallprovide that the exception orlimitation referred to in theprevious paragraph only
applies to types of works orother subject-matter forwhich no collective
management organisation
exists that fulfils theconditions referred to inpoint (a) of paragraph 1.

GREEN

(b)
such works or othersubject-matter are madeavailable on noncommercial websites.

GREEN

Art. 7, para
1b

1b.
Member Statesshall provide that the
exception adopted
pursuant to paragraph 1adoes not apply in sectors
or for types of works
where appropriate
licensing-based solutions,
including but not limited
to solutions provided for inparagraph 1, are available.
Member States shall, in
consultation with authors,other rightholders,collective management
31

168.

Location

Art. 7, para
2, subpara 1

COMMISSIONPROPOSAL
COM(2016)593

2.
A work or othersubject-matter shall bedeemed to be out ofcommerce when the whole
work or other subjectmatter, in all its
translations, versions andmanifestations, is notavailable to the publicthrough customarychannels of commerce andcannot be reasonably
expected to become so.

EP TEXT

organisations and cultural
heritage institutions,determine the availabilityof extended collective
licensing-based solutions
for specific sectors or types
of works.

2.
A work or othersubject-matter shall bedeemed to be out ofcommerce when the whole
work or other subjectmatter, in all its
translations, versions andmanifestations, is notavailable to the publicthrough customarychannels of commerce andcannot be reasonably
expected to become so.
Member States may
32

COUNCIL TEXT
doc. 9134/18

2.
A work or othersubject-matter shall bedeemed to be out-ofcommerce when it can bepresumed in good faiththat the whole work orother subject-matter, in all
its translations, versions
and manifestations, is notavailable to the publicthrough customarychannels of commerce andcannot be reasonably
expected to become so.

POSSIBLECOMPROMISESOLUTION

effectively, exclude theirworks or other subjectmatter from the licensing
mechanism referred to inparagraph 1 or from uses
under the exception orlimitation referred to inparagraph 1a, either ingeneral or in specific cases,
including after theconclusion of a licence or
the beginning of the use
concerned.

GREEN

2.
A work or othersubject-matter shall bedeemed to be out-ofcommerce when it can bepresumed in good faith thatthe whole work or othersubject-matter is notavailable to the publicthrough customary channelsof commerce after areasonable effort is made to
determine such availability.

169.

Location

Art. 7, para
2, subpara 2

COMMISSIONPROPOSAL
COM(2016)593

Member States shall, in
consultation withrightholders, collective
management organisations
and cultural heritage
institutions, ensure that therequirements used todetermine whether works
and other subject-mattercan be licensed inaccordance with paragraph
1 do not extend beyond
what is necessary andreasonable and do notpreclude the possibility todetermine the out-ofcommerce status of acollection as a whole, when

EP TEXT

provide a cut-off date inrelation to determining
whether a work previously
commercialised is deemed
to be out of commerce.
[See definition of out-ofcommerce work in
Parliament’s Article 2(4a)(rows 122-126)]
Member States shall, in
consultation withrightholders, collective
management organisations
and cultural heritage
institutions, ensure that therequirements used todetermine whether works
and other subject-mattercan be licensed inaccordance with paragraph
1 or used in accordancewith paragraph 1a do notextend beyond what isnecessary and reasonable
and do not preclude thepossibility to determine theout-of-commerce status of
33

COUNCIL TEXT
doc. 9134/18

after a reasonable effort
is made to determine such
availability.

Member States shall, in
consultation withrightholders, collective
management organisations
and cultural heritage
institutions, ensure that themay provide for specificrequirements used todetermine whether works
and other subject-mattercan be licensed inaccordance with paragraph
1 do. Such requirements
shall not extend beyond
what is necessary andreasonable, and doshall notpreclude the possibility todetermine the out-of-

POSSIBLECOMPROMISESOLUTION

GREEN

Member States may provide
for specific requirements,
such as a cut-off date, todetermine whether works
and other subject-matter canbe licensed in accordancewith paragraph 1 or used
under the exception orlimitation referred to inparagraph 1a. Suchrequirements shall notextend beyond what isnecessary and reasonable,
and shall not preclude thepossibility to determine theout-of-commerce status of a

COUNCIL TEXT

commerce status of acollection as set of works
or other subject-matteras a whole, when it isreasonable to presume that
all works or other subjectmatter in the collection areout -of -commerce.

3. [Moved to new Article
8a(2)]

set of works or othersubject-matter as a whole,when it is reasonable topresume that all works orother subject-matter are outof commerce.

EP TEXTa collection as a whole,when it is reasonable topresume that all works orother subject-matter in thecollection are out ofcommerce.

3. [Moved to new Article

Location

3. Member States shallprovide that appropriate
publicity measures aretaken regarding:

POSSIBLECOMPROMISESOLUTION

3.
Member States shallprovide that appropriate
publicity measures aretaken regarding:(a) the deeming of works
or other subject-matter as
out of commerce;doc. 9134/18

Art. 7,
para 3,
introductory part(a)the deeming ofworks or other subjectmatter as out of commerce;

COMMISSIONPROPOSAL
COM(2016)593

170.

Art. 7, para
3, point (a)it is reasonable to presume
that all works or othersubject-matter in thecollection are out ofcommerce.

171.

Art. 7, para
3, point (b)(b) the any licence, and inparticular its application to
unrepresented rightholders;

8a(2)]

172.

(b)
the licence, and inparticular its application to
unrepresented rightholders;173.

Art. 7, para
3, point (c)(c)
the possibility ofrightholders to object,referred to in point (c) of
paragraph 1;(c) the possibility ofrightholders to object,referred to in point (c) of
paragraph 1 and point (b)of paragraph 1a;

34

174.

175.

176.

EP TEXTCOUNCIL TEXTPOSSIBLECOMPROMISESOLUTION

Locationdoc. 9134/18

COMMISSIONPROPOSAL
COM(2016)593

Art. 7, para
3, closing
phraseincluding during a
including during areasonable period of time
reasonable period of time
before the works or otherat least six months before
subject-matter are digitised, the works or other subjectdistributed, communicated matter are digitised,to the public or madedistributed, communicatedavailable.
to the public or madeavailable.

4.
Member States shallensure that the licencesreferred to in paragraph 1
are sought from a collective
management organisationthat is representative for theMember State where thecultural heritage institution
is established.

GREEN

Art. 7,
para 4,
introductory part /Art. 7, para
4 (Council)

4.
Member States shallensure that the licencesreferred to in paragraph 1
are sought from a collective
management organisationthat is representative for theMember State where:

4.
Member Statesshall ensure that thelicences referred to inparagraph 1 are soughtfrom a collective
management organisationthat is representative for
the Member State where:
the cultural heritage
institution is established.

4.
Member Statesshall ensure that thelicences referred to inparagraph 1 are soughtfrom a collective
management organisationthat is representative for
the Member State where:

Art. 7,
para 5,
introductory part(Council)

5.
This Article shallGREEN
not apply to sets of out-of- 5.
This Article shall notcommerce if, following
apply to sets of out-ofthe reasonable effort tocommerce works if, on thedetermine commercial
basis of the reasonable effort
availability, there isreferred to in paragraph 2,
there is evidence that such
35

177.

178.

179.

Location
EP TEXTCOUNCIL TEXT
doc. 9134/18

POSSIBLECOMPROMISESOLUTION(a)works or othersubject-matter firstpublished or, in the absenceof publication, firstbroadcast in a third country,
except for cinematographic
or audiovisual works;

COMMISSIONPROPOSAL
COM(2016)593(a)the works or(a)the works or(a)the works or otherphonograms were first
phonograms were firstsubject-matter
published or, in the absence published or, in the absence phonograms were firstof publication, where theyof publication, where they
published or, in thewere first broadcast, except were first broadcast, except absence of publication,
for cinematographic andfor cinematographic andwhere they were firstaudiovisual works;
audiovisual works;
broadcast in a third
country, except forcinematographic andoraudiovisual works;

sets predominantly consistof:(b)the producers of theworks have their
headquarters or habitualresidence, forcinematographic andaudiovisual works; or(b)cinematographic oraudiovisual works, theproducers of which havetheir headquarters or
habitual residence in a third
country; orevidence that such sets
predominantly consist of:Art. 7,
para 4,point (a)(EP)/
Art. 7, para
5, point (a)(Council)(b)
the producers of theworks have their
headquarters or habitualresidence, forcinematographic andaudiovisual works; or(b)cinematographic
or audiovisual works, theproducers of theworkswhich have their
headquarters or habitualresidence, forcinematographic andaudiovisual works in athird country; orc)works or othersubject-matter of third
country nationals when a

GREEN

GREEN

GREEN

Art. 7,
para 4,point (b)(EP)/ Art.
7, para 5,
point (b)(Council)c)the cultural heritage
institution is established,works or other subjectmatter of third country
nationals when a Member(c)the cultural heritage
institution is established,when a Member State or athird country could not be
determined, after(c)
the cultural heritage
institution is established,when a Member State or athird country could not be
determined, after

Art. 7,
para 4,point (c)(EP) /Art.
7, para 5,

36

180.

181.
182.

Location

point (c)(Council)COMMISSIONPROPOSAL
COM(2016)593
reasonable efforts,
according to points (a) and(b).

5.
Paragraphs 1, 2 and3 shall not apply to theworks or other subjectmatter of third country
nationals except wherepoints (a) and (b) ofparagraph 4 apply.

Art. 8, title

Article 8
Cross-border uses

Art. 7, para
5 (EP)/
Art. 7,
para 5,closingphrase(Council)Art. 8, para
1

1.
Works or othersubject-matter covered by alicence granted inaccordance with Article 7
may be used by the cultural
heritage institution inState or a third country
could not be determined,
after a reasonable
effortseffort, according topoints (a) and (b).);doc. 9134/18

Member State or a third
country could not be
determined, after areasonable effort, according
to points (a) and (b);POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT

reasonable efforts,
according to points (a) and(b).

5.
Paragraphs 1, 2 and3 shall not apply tounlessthe works or other subjectmattercollective
management
organisation is
sufficiently
representative ofrightholders of that third
country nationals except
where pointsin themeaning of point (a) and(b) of paragraph 4 apply1.

EP TEXT

5.
Paragraphs 1, 2 and3 shall not apply to theworks or other subjectmatter of third country
nationals except wherepoints (a) and (b) ofparagraph 4 apply.

Article 8
Cross-border uses

1.
A licence granted inaccordance with Article 7
may allow the use of out-ofcommerce works or other

GREEN

Article 8
Cross-border uses

unless the collective
management organisation is
sufficiently representative ofrightholders of that third
country in the meaning ofpoint (a) of paragraph 1.

GREEN

Article 8
Cross-border uses

1.
Works Out-of1.
Works or othercommerce works or othersubject-matter covered bysubject-matter covered by a aA licence granted inlicence granted inaccordance with Article 7
accordance with Article 7
may be used allow the use
may be used by the cultural of out-of-commerce
37

183.

Location

Art. 8, para
2

COMMISSIONPROPOSAL
COM(2016)593
accordance with the termsof the licence in all
Member States.

2.
Member States shallensure that information thatallows the identification of
the works or other subjectmatter covered by a licencegranted in accordance with
Article 7 and information
about the possibility ofrightholders to objectreferred to in Article
7(1)(c) are made publicly
accessible in a single online
portal for at least six
months before the works orother subject-matter are

EP TEXT

heritage institution inaccordance with the termsof the licence that Article
in all Member States.

2.
Member Statesshall ensure that
information that allows theidentification of the works
or other subject-mattercovered by a licencegranted in accordance with
Article 7 and information
about the possibility ofrightholders to objectreferred to in point (c) of
Article 7(1) and point (b)of Article 7(1a) are madepublicly permanently,
easily and effectively
38

COUNCIL TEXT
doc. 9134/18

works or other subjectmatter by the cultural
heritage institution inaccordance with the termsof the licence in allany
Member StatesState.

2. [Moved to new Article
8a(1)]POSSIBLECOMPROMISESOLUTION

subject-matter by thecultural heritage institution
in any Member State.

2. The uses of works andother subject-matter underthe exception or limitationreferred to in Article 7(1a)shall be deemed to occur
solely in the Member State
where the cultural heritage
institution undertaking thatuse is established.

GREEN

2. [Moved to new Article
8a(1)]

184.

Location

Art. 8, para
3

COMMISSIONPROPOSAL
COM(2016)593
EP TEXT3.
The portal referred
to in paragraph 2 shall beestablished and managed
by the European Union
Intellectual Property Officein accordance with
Regulation (EU) No
386/2012.

digitised, distributed,
accessible in a public
communicated to the public single online portal for at
or made available in
least six months before theMember States other thanworks or other subjectthe one where the licence is matter are digitised,granted, and for the whole
distributed, communicatedduration of the licence.
to the public or madeavailable in Member Statesother than the one where
the licence is granted, or in
the cases covered by
Article 7(1a), where thecultural heritage
institution is establishedand for the whole durationof the licence.
3.
The portal referred
to in paragraph 2 shall beestablished and managed
by the European Union
Intellectual Property Officein accordance with
Regulation (EU) No
386/2012.

39

POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT
doc. 9134/18

3. [Moved to new Article
8a(1) second subparagraph]

GREEN

3. [Moved to new Article
8a(1) second
subparagraph]

185.

186.

Location
EP TEXTCOUNCIL TEXT
doc. 9134/18

Art. 8a, title

Article 8a
Publicity measures

COMMISSIONPROPOSAL
COM(2016)593

Art. 8a,para 1, subpara 1

1.
Member Statesshall ensure that
information that allowsfor
the purposes of theidentification of the out-ofcommerce works or othersubject-matter covered by alicence granted inaccordance with Article 7
andas well as information
about thepossibilitypossibilities ofrightholders to objectreferred to in Article
7(1)(c) are), and, as soon
as it is available,
information on theparties to the licence, thecovered territories andthe allowed uses is madepublicly accessible in asingle online portal
forfrom at least six months
40

POSSIBLECOMPROMISESOLUTION

GREEN

Article 8a
Publicity measures

GREEN

1.
Member States shallensure that informationfrom cultural heritage
institutions, collective
management organisations
or relevant publicauthorities for the purposesof the identification of theout-of-commerce works orother subject-mattercovered by a licencegranted in accordancewith Article 7(1) or used
under the exception orlimitation referred to in
Article 7(1a) as well as
information about thepossibilities of rightholders
referred to in Article 7(1c),and, as soon as it isavailable and where

187.

Location

Art. 8a,para 1, subpara 2

COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

41

COUNCIL TEXT
doc. 9134/18

POSSIBLECOMPROMISESOLUTION

The portal shall beestablished and managed by
the European Union
Intellectual Property Officein accordance with
Regulation (EU) No
386/2012.

GREEN[Article 8(2) of the COM
proposal, amended]

before the works or otherrelevant, information on thesubject-matter are
parties to the licence, thedigitised, distributed,
covered territories and thecommunicated to theallowed uses is madepublic or made available in permanently, easily andMember States other thaneffectively accessible in athe one where the licence is public single online portal
granted, and for the wholefrom at least six months
duration ofto the public in before the works or otheraccordance with thesubject-matter are
licence.
distributed, communicatedto the public or made[Article 8(2) of the COM
available to the public in
proposal, amended]accordance with the licenceor under the exception orlimitation.

3.
The portal referred
to in paragraph 2 shall beestablished and managed
by the European Union
Intellectual Property Officein accordance with
Regulation (EU) No
386/2012.

188.

Location

Art. 8a,para 2

COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

42

COUNCIL TEXT
doc. 9134/18[Article 8(3) of the COM
proposal, amended]

POSSIBLECOMPROMISESOLUTION[Article 8(3) of the COM
proposal, amended]

2.
Member States
GREEN
shall provide that, if
2.
Member States shallnecessary for the general provide that, if necessary forawareness ofthe general awareness ofrightholders, further
rightholders, further
appropriate publicity
appropriate publicity
measures are taken
measures are taken
regarding: (a) the deeming regarding the possibility forof works or other subjectcollective management
matter as out of commerce; organisations to license(b) the licence, and inworks or other subjectparticular its application to matter in accordance with
unrepresented rightholders; Article 7, the licences
the possibility for
granted, the uses under thecollective management
exception or limitation
organisations to licensereferred to in Article 7(1a)works or other subjectand the possibilities ofmatter in accordancerightholders referred to inwith Article 7, theArticle 7(1c).
licences granted and (c)the possibilities to object of The additional appropriate
publicity measures shall berightholders referred to in
taken in the Member State
where the licence is soughtLocation
COMMISSIONPROPOSAL
COM(2016)593
EP TEXT43

COUNCIL TEXT
doc. 9134/18

POSSIBLECOMPROMISESOLUTION[Article 7(3) of the COM
proposal, amended]

point (c) of paragraph 1
in accordance to Article
Article 7(1)(c) ;.
7(1) or, for uses under the
exception or limitation
Including during areferred to in Article 7(1a),reasonable period of time
where the cultural heritage
before the works or othersubject-matter are digitised, institution is established. If
distributed, communicated there is evidence, such as theorigin of the works or otherto the public or madesubject-matter, to suggest
available.
that the awareness ofrightholders could be more
efficiently raised in otherMember States or third
countries, such publicity
measures shall also coverthose Member States andthird countries.

The additional
appropriate publicity
measures shall be takenin the Member State
where the licence issought. If there isevidence, such as theorigin of the works orother subject-matter, tosuggest that theawareness of rightholders
could be more efficiently
raised in other Member
States or third countries,
such publicity measures
shall also cover thoseMember States and third
countries.

189.
Art 9

Art. 9, title

Location

190.

COMMISSIONPROPOSAL
COM(2016)593

Article 9
Stakeholder dialogue
Member States shall ensurea regular dialogue between
representative users' andrightholders' organisations,and any other relevant
stakeholder organisations,to, on a sector-specificbasis, foster the relevanceand usability of thelicensing mechanisms
referred to in Article 7(1),ensure the effectiveness ofthe safeguards forrightholders referred to inthis Chapter, notably as
regards publicity measures,
and, where applicable,
assist in the establishmentof the requirements
referred to in the second
subparagraph of Article
7(2).

EP TEXT

Article 9
Stakeholder dialogue

COUNCIL TEXT
doc. 9134/18[Article 7(3) of the COM
proposal, amended]

Article 9
Stakeholder dialogue

Member States shall ensure Member States shall ensurea regular dialogue between consult rightholders,
representative users' andcollective management
rightholders' organisations, organisations andand any other relevant
cultural heritage
stakeholder organisations,institutions in each sector
to, on a sector-specific
before establishingbasis, foster the relevance
specific requirements
and usability of the
pursuant to Article 7(2),licensing mechanisms
and encourage a regularreferred to in Article 7(1)dialogue between
and the exception referred representative users' andto in Article 7(1a), ensure
rightholders' organisations,the effectiveness of the
including collective
safeguards for rightholders management
referred to in this Chapter,organisations, and any
notably as regards publicity other relevant stakeholder
measures, and, whereorganisations, to, on aapplicable, assist in the
sector-specific basis, toestablishment of thefoster the relevance andrequirements referred to in usability of the licensing
mechanisms referred to in
44

POSSIBLECOMPROMISESOLUTION

Article 9
Stakeholder dialogue

GREEN

Member States shall consult
rightholders, collective
management organisations
and cultural heritage
institutions in each sector
before establishing specificrequirements pursuant to
Article 7(2), and encouragea regular dialogue between
representative users' andrightholders' organisations,
including collective
management organisations,and any other relevant
stakeholder organisations,on a sector-specific basis, tofoster the relevance andusability of the licensing
mechanisms referred to in
Article 7(1) and to ensure
the effectiveness of the

191.

192.

193.

Location

Art. 9a, title

Art. 9a,para 1COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

the second subparagraph of
Article 7(2).

45COUNCIL TEXT

Article 9a

Measures to facilitatecollective licensing

CHAPTER 1a

Article 7(1),) and toensure the effectiveness ofthe safeguards forrightholders referred to inthis Chapter, notably as
regards publicity measures,
and, where applicable,
assist in the establishmentof the requirements
referred to in the second
subparagraph of Article
7(2).

Collective licensing with anextended effect

Article 9a

Measures to facilitatecollective licensing

CHAPTER 1a

safeguards for rightholders
referred to in this Chapter.

POSSIBLECOMPROMISESOLUTION

Collective licensing withan extended effect1.
Member States may
provide, as far as the use
within their national territory
is concerned and subject tosafeguards provided for inthis Article, that when acollective management

doc. 9134/18

1.
Member States
may provide, as far as theuse within their national
territory is concernedand subject to safeguards
provided for in this
Article, that when aLocation
COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

46

COUNCIL TEXT
doc. 9134/18

POSSIBLECOMPROMISESOLUTION

organisation, to which iscollective management
organisation, in
subject to the national
accordance with its
rules implementing Article
2 of Directive 2014/26/EU,
mandates fromrightholders, enters into a applies and which , inaccordance with its
licensing agreement for
the exploitation of works mandates from rightholders,enters into a licensing
or other subject-matter
agreement for thesuch an agreement may
exploitation of works or
be extended to apply tothe rights of rightholders other subject-matter such an
agreement may be extended
who have not authorised
to apply to the rights of
the organisation torepresent them by way of rightholders who have notauthorised the thatassignment, licence or
any other contractual
collective management
organisation to represent
arrangement; or, withthem by way of assignment,
respect to such an
licence or any otheragreement, thecontractual arrangement; or,organisation has a legal
with respect to such an
mandate or is presumed
to represent rightholders agreement, the organisation
has a legal mandate or is
who have not authorised
presumed to represent
the organisationrightholders who have notaccordingly.
authorised the organisationaccordingly.

194.

195.

Location
EP TEXTCOUNCIL TEXTPOSSIBLECOMPROMISESOLUTION

2.
Member States shallensure that the licensing
mechanism referred to inparagraph 1 is only applied
within well-defined areas ofuse where obtaining
authorisations fromrightholders on an individual
basis is typically onerous
and impractical to a degree
that makes the required
licensing transaction
unlikely due to the nature of
the use or of the types ofworks or other subjectmatter concerned and thatsuch licensing mechanism
safeguards the legitimate
interests of rightholders .

doc. 9134/18

Art. 9a,para 2

2.
Member Statesshall ensure that thelicensing mechanism
referred to in paragraph
1 is only applied within
well-defined areas of use
where obtaining
authorisations fromrightholders on an
individual basis is
typically onerous andimpractical to a degree
that makes the required
licensing transaction
unlikely due to the natureof the use or of the types
of works or other subjectmatter concerned andthat such mechanism
safeguards the legitimate
interests of rightholders.

3.
The safeguards
referred to in paragraph 1
must ensureshall provide
that:

COMMISSIONPROPOSAL
COM(2016)593

Art. 9a,para 33.
The safeguards
referred to in paragraph
1 must ensure that:

47

196.

197.

198.

Location
EP TEXTCOUNCIL TEXT
doc. 9134/18

POSSIBLECOMPROMISESOLUTION

Art. 9a,para 3,point (a)(a)
the organisation is,on the basis of mandates
from rightholders,sufficiently
representative ofrightholders in therelevant type of works orother subject-matter andof the rights which are
the subject of the licence
for the relevant Member
State;COMMISSIONPROPOSAL
COM(2016)593

Art. 9a,para 3,point (b)equal treatment is(b)equal treatment is (b)guaranteed to all
guaranteed to allrightholders in relation to rightholders, including in
relation to the terms of thethe terms of the licence;
licence;(a)the collective right
management organisationis, on the basis of mandates
from rightholders,sufficiently representative ofrightholders in the relevant
type of works or othersubject-matter and of therights which are the subjectof the licence for the
relevant Member State;Art. 9a,para 3,point (c)(c)
rightholders who
have not authorised theorganisation operating thelicence may at any time
easily and effectively
exclude their works or othersubject-matter from thelicensing mechanism(c)rightholders who
have not authorised theorganisation operating
the licence may at any
time easily and effectively
exclude their works orother subject-matterfrom the licensing
mechanism established in
48

199.

Location

Art. 9a,para 3,point (d)COMMISSIONPROPOSAL
COM(2016)593
EP TEXT49

COUNCIL TEXT

established in accordancewith this Article;

POSSIBLECOMPROMISESOLUTION
accordance with this
Article;(d)appropriate publicity
measures are taken to raise
the awareness of informrightholders regarding thepossibility for the collective
management organisations
to license works or othersubject-matter and thelicensing taking place inaccordance with this Article,
and the possibilities ofrightholders referred to inpoint (c) starting from areasonable period before theworks or other subjectmatter are used under the
licence. Publicity measures
should be effective without
the need to inform eachrightholder individually.

doc. 9134/18(d)appropriate
publicity measures aretaken to raise theawareness of rightholders
regarding the possibility
for organisations tolicense works or othersubject-matter and thelicensing taking place inaccordance with this
Article, and thepossibilities ofrightholders referred toin point (c) starting froma reasonable period
before the works or othersubject-matter are used
under the licence.
Publicity measures
should be effective
without the need to
inform each rightholder
individually.

200.

201.

Location

Art. 9a,para 4Art. 9a,para 5

COMMISSIONPROPOSAL
COM(2016)593
EP TEXT50

COUNCIL TEXT
doc. 9134/18

4.
The rules provided
for in this Article arewithout prejudice to theapplication of collective
licensing mechanisms
with an extended effect inconformity with otherprovisions of Union law,
including those whichallow exceptions orlimitations, and shall not
apply to mandatory
collective management ofrights.

5.
Where the law of a
Member State provides
for a licensing
mechanism in accordancewith this Article, the

POSSIBLECOMPROMISESOLUTION

4.
The rules provided
for in this Article arewithout prejudice does notaffect to the application ofcollective licensing
mechanisms with anextended effect inconformity with otherexisting provisions of Union
law, including those
provisions which allow
exceptions or limitations.

This article shall not apply
to mandatory collective
management of rights.

Article 7 of Directive
2014/26/EU shall apply tothe licensing mechanism
provided for in this
Article.

5.
Where the law of a
Member State provides for alicensing mechanism inaccordance with this Article,
the Member State concerned

202.

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Art. 9a,para 6

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EP TEXT

51

COUNCIL TEXT

shall inform the Commission
about the scope of that law,
purposes and types oflicences that may beintroduced under that law as
well as contact details fororganisations issuinglicences in accordance withthe mechanism in paragraph
1, and the way in which
information on thelicensing and thepossibilities of rightholders
referred to in point (c) of
paragraph 3 can beobtained. The Commission
shall publish thisinformation.

POSSIBLECOMPROMISESOLUTION

Member State concerned
shall inform theCommission about thescope of that law,
purposes and types oflicences that may beintroduced under that
law as well as contact
details for organisations
issuing licences inaccordance with themechanism in paragraph
1. The Commission shall
publish this information.

6. Based on the information
received pursuant toparagraph 5 and on thediscussions in the contact
committee referred to in
Article 12(3) of Directive
2001/29/EC, theCommission shall, by 10
April 2021, submit to thedoc. 9134/18

6.
Based on theinformation received
pursuant to paragraph 5
and on the discussions in
the contact committee
referred to in Article
12(3) of Directive
2001/29/EC, theCommission shall, by 31

203.

Location
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CHAPTER 2
Access to and availability

EP TEXT

CHAPTER 2
Access to and availability
52

COUNCIL TEXT

European Parliament and to
the Council a report on theuse of such mechanisms
referred to in paragraph 1 in
the EU, and their impact onlicensing and rightholders,
including right holders
who are not members
and/or who are nationals
of, or resident in, anotherMember State, theireffectiveness to facilitate
the dissemination ofcultural content, and theimpact on the internalmarket, including thecross- border provision ofservices and competition.
The Commission’s reportshall be accompanied, if
appropriate, by a legislative
proposal, including as
regards the cross-bordereffect of such national
schemes.

POSSIBLECOMPROMISESOLUTION

December 2020, submit
to the European
Parliament and to theCouncil a report on theuse of such mechanisms
referred to in paragraph
1 in the EU and theirimpact on licensing andrightholders. The
Commission’s reportshall be accompanied, if
appropriate, by alegislative proposal,
including as regards
publicity measures, and,
where applicable, assist in
the establishment of therequirements referred to in
the second subparagraph of
Article 7(2).the crossborder effect of suchnational schemes.

CHAPTER 2

doc. 9134/18

CHAPTER 2
Access to and availability

204.
205.

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Art. 10, title
Art. 10,sub-para 1

COMMISSIONPROPOSAL
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EP TEXT

Article 10
Negotiation mechanism

COUNCIL TEXT
doc. 9134/18

Article 10
Negotiation mechanism

POSSIBLECOMPROMISESOLUTION

Member States shall ensurethat parties facing
difficulties related to thelicensing of rights whenseeking to conclude anagreement for the purpose of
making available
audiovisual works on videoon-demand services, may
rely on the assistance of an
impartial body or of
mediators. The impartial
body created or designatedby the Member State forthe purpose of this Article
or mediators shall provide
assistance to the parties with
their negotiations and help
them reach agreements,
including, where

GREEN

Article 10
Negotiation mechanismof audiovisual works onof audiovisual works onof audiovisual works on
Access to and availability ofvideo-on-demand platforms video-on-demand platforms video-on-demand platforms audiovisual works on videoon-demand platforms
Article 10
Negotiation mechanism

Member States shall ensure Member States shall ensure Member States shall ensurethat where parties wishingthat where parties wishingthat where parties
to conclude an agreement
to conclude an agreement
wishingfacing difficulties
for the purpose of making
for the purpose of making
related to the licensing ofavailable audiovisual works available audiovisual
rights when seeking to
on video-on-demand
works on video-on-demand conclude an agreement for
platforms face difficulties
platforms face difficulties
the purpose of making
relating to the licensing ofrelating to the licensing ofavailable audiovisual
rights, they may rely on the audiovisual rights, theyworks on video-on-demandassistance of an impartial
may rely on the assistanceplatforms face difficulties
body with relevantof an impartial body withrelating to the licensing ofexperience. That body shall relevant experience. Thatrights, theyservices, may
provide assistance withbody The impartial bodyrely on the assistance of annegotiation and help reach
impartial body withcreated or designated byagreements.
relevant experience. Thator
the Member State for theof mediators. The body or
purpose of this Article
shall provide assistance tomediators shall provide
the parties with negotiation assistance to the parties
and help them to reachwith negotiationtheiragreement.
negotiations and help
them reach agreements,
53

206.

207.

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Art. 10,sub-para 2

Art. 10,sub-para 3

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No later than [datementioned in Article 21(1)]Member States shall notify
to the Commission the
body referred to inparagraph 1.

EP TEXTNo later than [datementioned in Article 21(1)]Member States shall notify
to inform the Commissionof the body referred to inparagraph 1. they create ordesignate pursuant to thefirst paragraph.

To encourage theavailability of audiovisual
works on video-ondemand platforms,
54

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including, whereappropriate, bysubmitting proposals tothe parties.

No later than [datementioned in Article 21(1)]Member States shall notify
to the Commission the
body or mediators referred
to in paragraph 1 no later
than [date mentioned in
Article 21(1)]. In cases
where Member States
have chosen to rely on
mediation, thenotification to theCommission shall at least
include, when available,
the source where relevant
information on theentrusted mediators canbe found.

POSSIBLECOMPROMISESOLUTION

appropriate, by submitting
proposals to the parties.

GREEN

Member States shall notify
to the Commission the bodyor mediators referred to inparagraph 1 no later than[date mentioned in Article
21(1)]. In cases where
Member States have chosen
to rely on mediation, thenotification to theCommission shall at least
include, when available, thesource where relevant
information on the entrusted
mediators can be found.

GREEN

DeletedLocation
EP TEXTCOUNCIL TEXTPOSSIBLECOMPROMISESOLUTION

Deleteddoc. 9134/18

CHAPTER 2a
Access to Union
publications

DeletedCOMMISSIONPROPOSAL
COM(2016)593

Article 10 aUnion Legal Deposit

Member States shall foster
dialogue between
representative
organisations of authors,
producers, video-ondemand platforms andother relevant
stakeholders.

209.

Art. 10a,title

Deleted

208.

210.

Art. 10a,para 11.
Any electronic
publication dealing with
Union-related matterssuch as Union law, Union
history and integration,
Union policy and Union
democracy, institutional
and parliamentary affairs,
and politics, that is madeavailable to the public in
the Union shall be subject
to a Union Legal Deposit.
55

211.

212.

213.

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EP TEXTCOUNCIL TEXT

DeletedPOSSIBLECOMPROMISESOLUTION

Art. 10a,para 2

2.
The European
Parliament Library shallbe entitled to delivery, freeof charge, of one copy of
every publication referred
to in paragraph 1.

Deleteddoc. 9134/18

Art. 10a,para 33.
The obligation set
out in paragraph 1 shallapply to publishers,
printers and importers of
publications for the works
they publish, print orimport in the Union.

DeletedCOMMISSIONPROPOSAL
COM(2016)593

Art. 10a,para 4

4.
From the day ofthe delivery to theEuropean Parliament
Library, the publications
referred to in paragraph 1
shall become part of theEuropean Parliament
Library permanentcollection. They shall bemade available to users at
the European Parliament
Library’s premises
exclusively for the purpose
56

Location

Art. 10b

214.

214A

Art. 10a,para 5214B

ex Article 5para. 1a(EP’s text)

COMMISSIONPROPOSAL
COM(2016)593
EP TEXTof research or study byaccredited researchers andunder the control of theEuropean Parliament
Library.
5.
The Commission
shall adopt acts to specify
the modalities relating to
the delivery to theEuropean Parliament
Library of publications
referred to in paragraph 1.

1a.
Member Statesshall ensure that any
material resulting from an
act of reproduction ofmaterial in the publicdomain shall not be
subject to copyright or
related rights, provided
that such reproduction is afaithful reproduction for
purposes of preservationof the original material.
57

COUNCIL TEXT
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Deleted

Article 10b

Member States shallprovide that, when the termof protection of a work ofvisual art has expired, anymaterial resulting from an
act of reproduction of thatwork shall not be subject tocopyright or related rights,
unless the material
resulting from that act ofreproduction is original in
the sense that it is theLocation

COUNCIL TEXTTITLE IV
MEASURES TO ACHIEVEA WELL-FUNCTIONING
MARKETPLACE FOR
COPYRIGHTEP TEXTPOSSIBLECOMPROMISESOLUTION

TITLE IV
MEASURES TO
ACHIEVE A WELLFUNCTIONING
MARKETPLACE FOR
COPYRIGHT

doc. 9134/18

TITLE IV
MEASURES TO
ACHIEVE A WELLFUNCTIONING
MARKETPLACE FOR
COPYRIGHT

COMMISSIONPROPOSAL
COM(2016)593

author's own intellectual
creation.

215.

TITLE IV
MEASURES TO
ACHIEVE A WELLFUNCTIONING
MARKETPLACE FOR
COPYRIGHT[text taken (unchanged)
from 4th column row 151]

216.

Article 11
Protection of press
publications concerning online
uses

CHAPTER 1
Rights in publications

Article 11
Protection of press
publications concerning
digitalonline uses

CHAPTER 1
Rights in publications
Article 11
Protection of press
publications concerning
digital uses

1. Member States shallprovide publishers of press
publications established in a
Member State with the

CHAPTER 1
Rights in publications

Art. 11, title

Article 11
Protection of press
publications concerning
digital uses

1.
Member Statesshall provide publishers ofpress publications
established in a Member
State with the rights

GREEN

1.
Member Statesshall provide publishers ofpress publications with therights provided for in
Article 2 and Article 3(2)CHAPTER 1
Rights in publications

217.

218.

Art. 11,para 1

1.
Member States shallprovide publishers of press
publications with the rights
provided for in Article 2
and Article 3(2) of

58

219.

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Art. 11,para 1, subpara 2

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Directive 2001/29/EC for
the digital use of their press
publications.

EP TEXTof Directive 2001/29/EC sothat they may obtain fairand proportionate
remuneration for thedigital use of their press
publications by
information society service
providers.

59

COUNCIL TEXT
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provided for in Article 2
and Article 3(2) ofDirective 2001/29/EC for
the digitalonline use of
their press publications by
information society
service providers.

The rights referred to in
the first subparagraphshall not apply in respectof uses of insubstantial
parts of a press
publication. Member
States shall be free todetermine theinsubstantial nature ofparts of press
publications taking into
account whether these

POSSIBLECOMPROMISESOLUTION

rights provided for in Article
2 and Article 3(2) ofDirective 2001/29/EC for
the online use of their press
publications by informationsociety service providers.
These rights shall not apply
to private or noncommercial uses of press
publications carried out by
individual users.

The protection granted under
the first subparagraph shallnot apply to acts ofhyperlinking.

GREEN

The rights referred to in
the first subparagraphshall not apply in respectof uses of individual words
or very short extracts of apress publication.

220.

221.

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Art. 11,para 1aArt. 11,para 2

COMMISSIONPROPOSAL
COM(2016)593

2.
The rights referred
to in paragraph 1 shallleave intact and shall in no
way affect any rights
provided for in Union law
to authors and otherrightholders, in respect of
the works and othersubject-matter incorporated
in a press publication. Suchrights may not be invokedagainst those authors andother rightholders and, in

EP TEXT

1a.
The rights referred
to in paragraph 1 shall notprevent legitimate private
and non-commercial useof press publications by
individual users.
2.
The rights referred
to in paragraph 1shall leave
intact and shall in no way
affect any rights provided
for in Union law to authorsand other rightholders, inrespect of the works andother subject-matterincorporated in a press
publication. Such rights
may not be invoked against
those authors and otherrightholders and, in
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parts are the expressionof the intellectual
creation of their authors,or whether these parts
are individual words orvery short excerpts, orboth criteria.

2.
The rights referred
to in paragraph 1 shallleave intact and shall in no
way affect any rights
provided for in Union law
to authors and otherrightholders, in respect of
the works and othersubject-matter incorporated
in a press publication.
SuchThe rights referred toin paragraph 1 may not be
invoked against those

POSSIBLECOMPROMISESOLUTION[integrated into paragraph
1, row 218]

GREEN

2. The rights referred to inparagraph 1 shall leave
intact and shall in no way
affect any rights provided
for in Union law to authorsand other rightholders, inrespect of the works andother subject-matterincorporated in a press
publication. The rights
referred to in paragraph 1
may not be invoked against

222.

Location

Art. 11,para 2, subpara 2

COMMISSIONPROPOSAL
COM(2016)593
particular, may not deprive
them of their right toexploit their works andother subject-matter
independently from thepress publication in which
they are incorporated.

EP TEXT

particular, may not deprive
them of their right toexploit their works andother subject-matter
independently from thepress publication in which
they are incorporated.

61

COUNCIL TEXT
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authors and otherrightholders and, inparticular, may not deprive
them of their right toexploit their works andother subject-matter
independently from thepress publication in which
they are incorporated.

POSSIBLECOMPROMISESOLUTION

those authors and otherrightholders and, inparticular, may not deprive
them of their right to exploit
their works and othersubject-matter independently
from the press publication inwhich they are incorporated.

When a work or otherGREEN
subject-matter isWhen a work or otherincorporated in a press
subject-matter ispublication on the basis
incorporated in a pressof a non-exclusive licence,
publication on the basis of athe rights referred to in
non-exclusive licence, theparagraph 1 may not berights referred to in
invoked to prohibit theparagraph 1 may not be
use by other authorised
invoked to prohibit the use
users. The rights referredby other authorised users.
to in paragraph 1 may
The rights referred to in
not be invoked to prohibit
paragraph 1 may not be
the use of works or otherinvoked to prohibit the use
subject-matter whoseof works or other subject
protection has expired.
matter whose protection has
expired.

223.

224.

225.

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Art. 11,para 2aArt. 11,para 3Art. 11,para 4

COMMISSIONPROPOSAL
COM(2016)593

3.
Articles 5 to 8 of
Directive 2001/29/EC and
Directive 2012/28/EU shallapply mutatis mutandis inrespect of the rights
referred to in paragraph 1.

4.
The rights referred
to in paragraph 1 shall
expire 20 years after the
publication of the press
publication. This term shallbe calculated from the firstday of January of the year
following the date of
publication.

EP TEXT

2a.
The rights referred
to in paragraph 1 shall notextend to mere hyperlinks
which are accompanied byindividual words.
3.
Articles 5 to 8 of
Directive 2001/29/EC and
Directive 2012/28/EU shallapply mutatis mutandis inrespect of the rights
referred to in paragraph 1.

4.
The rights referred
to in paragraph 1 shall
expire 20 5 years after the
publication of the press
publication. This term shallbe calculated from the firstday of January of the year
following the date of
publication. The rightreferred to in paragraph 1
shall not apply withretroactive effect.
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3.
Articles 5 to 8 of
Directive 2001/29/EC and
Directive 2012/28/EU shallapply mutatis mutandis inrespect of the rights
referred to in paragraph 1.

4.
The rights referred
to in paragraph 1 shall
expire 20 years1 year after
the publication of the press
publication. This term shallbe calculated from the firstday of January of the year
following the date opublication.

POSSIBLECOMPROMISESOLUTION

GREEN[integrated into
paragraph 1, row 218]

GREEN

3. Articles 5 to 8 of
Directive 2001/29/EC and
Directives 2012/28/EU and(EU) 2017/1564 shall apply
mutatis mutandis in respectof the rights referred to inparagraph 1.

GREEN

4.
The rights referred toin paragraph 1 shall expire
20 years 1 year [5 years]
2 years after the publicationof the press publication. This
term shall be calculated
from the first day of Januaryof the year following thedate of publication.

Paragraph 1 shall not apply

226.

227.

228.

229.

Location

Art. 11,para 4aArt. 11,para 5

Art, 12, title

Art. 12,sub-para 1

COMMISSIONPROPOSAL
COM(2016)593

Article 12
Claims to faircompensation
Member States may
provide that where an

EP TEXT

4a.
Member Statesshall ensure that authors
receive an appropriate
share of the additional
revenues press publishers
receive for the use of apress publication by
information society service
providers

Article 12
Claims to faircompensation
Member States withcompensation-sharing
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POSSIBLECOMPROMISESOLUTION

to press publications firstpublished before [entry into
force of the Directive].

GREEN

4a.
Member States shallprovide that the authors of
the works incorporated in apress publication receive anappropriate share of theadditional revenues thatpress publishers receive forthe use of their press
publications by informationsociety service providers.

[integrated into paragraph
4; see last sentence in row
225]

GREEN

5. Paragraph 1 shall not
apply to press
publications firstpublished before [entry
into force of the Directive].

Article 12
Claims to fair compensation

GREEN

Article 12
Claims to faircompensation
Member States may
provide that where an

230.

Location(EP)/ Art.
12,
introductory part(Council)]Art. 12,point (a)COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

author has transferred orsystems between authors
licensed a right to aand publishers for
publisher, such a transfer or exceptions and limitations
a licence constitutes a
may provide that where an
sufficient legal basis for the author has transferred or
publisher to claim a sharelicensed a right to aof the compensation for
publisher, such a transfer orthe uses of the work madea licence constitutes aunder an exception or
sufficient legal basis for thelimitation to the transferred publisher to claim a shareor licensed right.
of the compensation for theuses of the work madeunder an exception orlimitation to the transferredor licensed right, provided
that an equivalent
compensation-sharing
system was in operation inthat Member State before
12 November 2015.

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author has transferred orMember States may provide
licensed a right to athat where an author has
publisher, such a transfer or transferred or licensed aa licence constitutes aright to a publisher, such a
sufficient legal basis for the transfer or a licencepublisher to claimbe
constitutes a sufficient legal
entitled to a share of :basis for the publisher to beentitled to a share of thecompensation for the uses of
the work made under an
exception or limitation to thetransferred or licensed right.

[remaining part of thisparagraph of the COM
proposal was moved to new
point (a) (see row 230)](a)the compensation
GREEN
for the uses of the work
[integreated into row 229]
made under an exception orlimitation to the transferredor licensed right.; and231.

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Art. 12,point (b)COMMISSIONPROPOSAL
COM(2016)593
EP TEXT232.

The first paragraph shallbe without prejudice to thearrangements in Member
States concerning public
lending rights, themanagement of rights notbased on exceptions orlimitations to copyright,
such as extended collective
licensing schemes, orconcerning remunerationrights on the basis ofnational law.

Art. 12,sub-para 2

233.

CHAPTER 1a
Protection of sport event
organizers

65

COUNCIL TEXT
doc. 9134/18[See Parliament’s subparagraph 1 of Article 12(row 229)](b)
the remuneration
for public lending
provided for in Article
6(1) of Directive
2006/115/EC.

POSSIBLECOMPROMISESOLUTION

GREEN

DeletedGREEN

The first paragraph shall be
without prejudice to existing
and future arrangements in
Member States concerning
public lending rights.

DeletedEP TEXT

Article 12a
Protection of sport event
organizers

Location

Art. 12a,title

COMMISSIONPROPOSAL
COM(2016)593

234.

Art. 12a

CHAPTER 2
Certain uses of protected
content by online services

235.

GREEN

Art. 13, title
Article 13
Article 13
Use of protected content by Use of protected content by
information society service information society online
providers storing andcontent sharing service
giving access to large
providers storing andamounts of works and othergiving access to large
subject-matter uploaded byamounts of works andtheir users
other subject-matter
uploaded by their users

CHAPTER 2
Certain uses of protected
content by online services

Member States shallprovide sport event
organizers with the rights
provided for in Article 2
and Article 3 (2) ofDirective 2001/29/EC and
Article 7 of Directive
2006/115/EC.

236.

237.

237A

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CHAPTER 2
Certain uses of protected
content by online services

DeletedPOSSIBLECOMPROMISESOLUTION

DeletedCHAPTER 2
Certain uses of protected
content by online services

Article 13[the compromise text of
Use of protected content by Article 13 is set out in row
information societyonline 237A]
content sharing service
providers storingLocation
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doc. 9134/18

COUNCIL TEXT

Article 13

POSSIBLECOMPROMISESOLUTION

Use of protected content by online content sharing service providers[storing and giving access to large amounts of works and other subject-matter uploaded by their users]
GREEN

1. Member States shall provide that an online content sharing service provider performs an act of communication to
the public or an act of making available to the public for the purposes of this directive when it gives the publicaccess to copyright protected works or other protected subject matter uploaded by its users.
GREEN

An online content sharing service provider shall therefore obtain an authorisation from the rightholders referred toin Article 3(1) and (2) of Directive 2001/29/EC, for instance by concluding a licencing agreement, in order tocommunicate or make available to the public works or other subject matter.
GREEN

2. Member States shall provide that when an authorisation has been obtained, including via a licensing agreement, by
an online content sharing service provider, this authorisation shall also cover acts carried out by users of theservices falling within Article 3 of Directive 2001/29/EC when they are not acting on a commercial basis or theiractivity does not generate significant revenues.
GREEN

3. When an online content sharing service provider performs an act of communication to the public or an act ofmaking available to the public, under the conditions established under this Directive, the limitation of liability
established in Article 14(1) of Directive 2000/31/EC shall not apply to the situations covered by this Article. This
67

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shall not affect the possible application of Article 14(1) of Directive 2000/31/EC to these service providers forpurposes falling outside the scope of this Directive.
GREEN

4. If no authorisation is granted, online content sharing service providers shall be liable for unauthorised acts ofcommunication to the public of copyright protected works and other subject matter, unless the service providers
demonstrate that they have:(a) made best efforts to obtain an authorisation, and(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure theunavailability of specific works and other subject matter for which the rightholders have provided theservice providers with the relevant and necessary information, and in any event(c) acted expeditiously, upon receiving a sufficiently substantiated notice by the rightholders, to remove from theirwebsites or to disable access to the notified works and subject matters, and made best efforts to prevent their
future uploads in accordance with paragraph (b).
GREEN

4a. In determining whether the service has complied with its obligations under paragraph 4 and in the light of theprinciple of proportionality the following should, among others be taken into account:(a) the type, the audience and the size of the services and (b) the number and type of works or other subject
matter uploaded by the users of the service;(c b) the availability of suitable and effective means and their cost for service providers.
GREEN

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4aa. Member States shall provide that when new online content sharing service providers whose services have been
available to the public in the Union for less than three years and which have an annual turnover below EUR 10
million within the meaning of the Commission Recommendation 2003/361/EC, the conditions applicable to themunder the liability regime set out in paragraph 4 are limited to the compliance with the letter (a) above point (a) ofparagraph 4 and to acting expeditiously, upon receiving a sufficiently substantiated notice, to remove thenotified works and subject matters from its website or to disable access to them.

Where the average number of monthly unique visitors of these service providers exceeds 5 million, calculated on
the basis of the last calendar year, they shall also demonstrate that they have made best efforts to prevent further
uploads of the notified works and other subject matter for which the rightholders have provided relevant andnecessary information.

5. The cooperation between online content service providers and rightholders shall not result in the prevention of theavailability of works or other subject matter uploaded by users which do not infringe copyright and related rights,
including where such works or subject matter are covered by an exception or limitation.

Users shall be allowed to upload and make available content generated by themselves or by other users andwhich includes parts of, existing protected works and subject matter for purposes of, quotation, criticism, review,
caricature, parody or pastiche.

Member States shall ensure that users in all Member States* are able to rely on the following existing
exceptions and limitations when uploading and making available content generated by users on online
content sharing services:(a) quotation, criticism, review;(b) use for the purpose of caricature, parody or pastiche.
69Location
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GREEN
6. (deleted/merged into paragraph 4)
GREEN

POSSIBLECOMPROMISESOLUTION

7. The application of the provisions in this article shall not lead to any general monitoring obligation as defined in
Article 15 of Directive 2000/31/EC.

Member States shall provide that online content sharing service providers shall provide rightholders, at theirrequest, with adequate information on the functioning of their practices with regard to the cooperation referred toin paragraph 4 and, where licensing agreements are concluded between service providers and rightholders,
information on the use of content covered by the agreements.

GREEN

8. Member States shall provide that an online sharing service provider puts in place an effective and expeditious
complaint and redress mechanism that is available to users of the service in case of disputes over the removal of or
blocking or disabling access to of works or other subject matter uploaded by them.

When rightholders request to remove or disable access to their specific works or other subject matter, they shall
duly justify the reasons for their requests. Complaints submitted under this mechanism shall be processed without
undue delay and decisions to remove or disable access to uploaded content shall be subject to human review.
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Member States shall also ensure that out-of-court redress mechanisms are available for the settlement ofdisputes. Such mechanisms shall enable disputes to be settled impartially and shall not deprive the user of thelegal protection afforded by national law, without prejudice to the rights of users to have recourse to efficientjudicial remedies. In particular, Member States shall ensure that users have access to a court or anotherrelevant judicial authority to assert the use of an exception or limitation to copyright rules. users have access toan independent body for the resolution of disputes and that there are national procedural rules in place to allow
users to assert their rights before a court.
GREEN

This Directive shall in no way affect legitimate uses, such as uses under exceptions and limitations provided for inUnion law, and shall not lead to any identification of individual users nor to the processing of their personal data,in accordance with Directive 95/46/EC, Directive 2002/58/EC and the General Data Protection Regulation.
GREEN

Online content sharing service providers shall inform the users in their terms and conditions about thepossibility for them to use works and other subject matter under exceptions or limitations to copyright andrelated rights provided for in Union law.
GREEN

9. As of [date of entry into force of this Directive] the Commission in cooperation with the Member States shallorganise stakeholder dialogues to discuss best practices for the cooperation between the online content sharing
service providers and rightholders. The Commission shall, in consultation with online content sharing service
providers, rightholders, users associations and other relevant stakeholders and taking into account the results of the
stakeholder dialogues, issue guidance on the application of Article 13 in particular regarding cooperation referred
to in paragraph 4. When discussing the best practices, special account shall be taken, among others, of the need
71

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EP TEXT

1.
Without prejudice
to Article 3(1) and (2) ofDirective 2001/29/EC,
online content sharing
Information society service
providers that store andprovide perform an act ofcommunication to the
public access to large
amounts of works or othersubject-matter uploaded bytheir users. They shall incooperation withrightholders, take measures
to ensure the functioning ofagreements concluded withrightholders for the use of
their works or othersubject-matter or to preventthe availability on theirservices of works or othersubject-matter identified byrightholders through the

COUNCIL TEXT
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An online content sharing
service provider shallobtain an authorisationfrom the rightholders
referred to in Article 3(1)and giving access to large
amounts of(2) of Directive
2001/29/EC in order tocommunicate or makeavailable to the public

POSSIBLECOMPROMISESOLUTION

1.
Member States shall [see compromise text in row
237A]
provide that an online
content sharing service
provider performs an actof communication to the
public or an act ofmaking available to the
public when it gives the
public access to copyrightprotected works or otherprotected subject matter
uploaded by its users.

to balance the fundamental rights and the use of exceptions and limitations shall be taken into account. For the
purpose of this stakeholders dialogue, users associations shall have access to adequate information from online
content sharing service providers on the functioning of their practices with regard to paragraph 4.

1.
Information society
service providers that store
and provide to the publicaccess to large amounts ofworks or other subjectmatter uploaded by theirusers shall, in cooperation
with rightholders, takemeasures to ensure thefunctioning of agreements
concluded withrightholders for the use of
their works or othersubject-matter or to preventthe availability on theirservices of works or othersubject-matter identified byrightholders through thecooperation with theservice providers. Those
measures, such as the useof effective content
recognition technologies,

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shall be appropriate andproportionate. The service
providers shall provide
rightholders with adequate
information on thefunctioning and thedeployment of themeasures, as well as, whenrelevant, adequate
reporting on therecognition and use of theworks and other subjectmatter.

EP TEXT

cooperation with theservice providers. Those
measures, such as the useof effective content
recognition technologies,
shall be therefore conclude
fair and appropriate andproportionate. The service
providers shall provide
rightholders with adequate
information on thefunctioning and thedeployment of themeasures, as well as, whenrelevant, adequate
reporting on therecognition and use of theworks and other subjectmatter. licensing
agreements with rightholders.

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works or other subject
matter. Where no such
authorisation has beenobtained, the service
provider shall preventthe availability on its
service of those works andother subject-matter
uploaded by matter,
including through theapplication of measuresreferred to in paragraph
4. This subparagraphshall apply without
prejudice to exceptions
and limitations provided
for in Union law.

Member States shallprovide that when an
authorisation has beenobtained, including via alicensing agreement, by
an online content sharing
service provider, thisauthorisation shall also
cover acts of uploadingby the users of the service
falling within Article 3 of

POSSIBLECOMPROMISESOLUTION

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Art. 13,para 2 (EP)COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

2. Member States shallensure that the Licensing
agreements which areconcluded by online
content sharing service
providers with rightholders for the acts ofcommunication referred toin paragraph 1 put in placecomplaints and redress
mechanisms that areavailable to users in case of
disputes over theapplication of the measuresreferred to in paragraph 1. ,shall cover the liability forworks uploaded by theusers of such online
content sharing services inline with the terms and74

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Directive 2001/29/EC
when they are not acting
on a commercial basis.

[Last two sentences of
COM proposal were moved
to Council’s paragraphs 5
and 6 respectively]

POSSIBLECOMPROMISESOLUTION[see compromise text in row
237A]

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Art. 13,para 2a(EP)

COMMISSIONPROPOSAL
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EP TEXT

conditions set out in thelicensing agreement,
provided that such users
do not act for commercial
purposes.
[See Council’s paragraph1, subparagraph 3 (row
238)]
2a.
Member Statesshall provide that where
right holders do not wish
to conclude licensing
agreements, online content
sharing service providers
and right holders shallcooperate in good faith inorder to ensure thatunauthorised protected
works or other subject
matter are not available on
their services. Cooperation
between online content
service providers and rightholders shall not lead topreventing the availabilityof non-infringing works orother protected subject
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POSSIBLECOMPROMISESOLUTION[see compromise text in row
237A]

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Art. 13,para 2 /para 2b(EP)

COMMISSIONPROPOSAL
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EP TEXT

matter, including those
covered by an exception orlimitation to copyright.
2.
Member States shall 2b.
Members States
ensure that the service
shall ensure that online
providers referred to incontent sharing service
paragraph 1 put in placeproviders referred to incomplaints and redress
paragraph 1 put in placemechanisms that are
effective and expeditious
available to users in case of complaints and redress
disputes over themechanisms that are
application of the measures available to users in casereferred to in paragraph 1.
the cooperation referred toin paragraph 2a leads tounjustified removals of
their content. Anycomplaint filed under suchmechanisms shall beprocessed without undue
delay and be subject tohuman review. Right
holders shall reasonably
justify their decisions to
avoid arbitrary dismissalof complaints. Moreover,in accordance with
Directive 95/46/EC,
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POSSIBLECOMPROMISESOLUTION[Paragraph 2 of the COM[see compromise text in row
proposal was moved to new 237A]
paragraph 7 of Council’s
text]

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Art. 13,para 3 (EP)COMMISSIONPROPOSAL
COM(2016)593

3.
Member States shall
facilitate, whereappropriate, thecooperation between theinformation society service
providers and rightholders
through stakeholder

EP TEXT

Directive 2002/58/EC andthe General Data
Protection Regulation, thecooperation shall not leadto any identification ofindividual users nor theprocessing of theirpersonal data. Member
States shall also ensurethat users have access toan independent body forthe resolution of disputes
as well as to a court oranother relevant judicial
authority to assert the useof an exception orlimitation to copyrightrules.
[See Council’s Article
13(7) (row 252)]

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3.
As of [date of entry [See new paragraph 8 of
into force of this directive], Council’s text]
the Commission and theMember States shall
facilitate whereappropriate, thecooperation organise
77

POSSIBLECOMPROMISESOLUTION[stakeholder dialogues weremoved to row 253, now
paragraph 8 in row 237A][see compromise text in row
237A]

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COMMISSIONPROPOSAL
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dialogues to define bestpractices, such as
appropriate andproportionate content
recognition technologies,
taking into account, among
others, the nature of theservices, the availability ofthe technologies and theireffectiveness in light oftechnologicaldevelopments.

EP TEXT

dialogues between theinformation society service
providers and rightholders
through stakeholder
dialogues stakeholders toharmonise and to define
best practices, such as
appropriate andproportionate content
recognition technologies,
taking into account, among
others, the nature of theservices, the availability ofthe technologies and theireffectiveness in light oftechnologicaldevelopments. and issue
guidance to ensure thefunctioning of licensing
agreements and oncooperation between
online content sharing
service providers and rightholders for the use of theirworks or other subject
matter within the meaningof this Directive. Whendefining best practices,
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POSSIBLECOMPROMISESOLUTION

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Art. 13,para 3(Council)COMMISSIONPROPOSAL
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EP TEXT

special account shall betaken of fundamental
rights, the use of
exceptions and limitations
as well as ensuring thatthe burden on SMEs
remains appropriate andthat automated blocking ofcontent is avoided.

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POSSIBLECOMPROMISESOLUTION[see compromise text in row
3.
When an online
237A]
content sharing service
provider performs an actof communication to the
public or an act ofmaking available to the
public, it shall not be
eligible for the exemptionof liability provided for in
Article 14 of Directive
2000/31/EC for
unauthorised acts ofcommunication to the
public and making
available to the public,
without prejudice to thepossible application of
Article 14 of Directive

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2000/31/EC to thoseservices for purposes
other than copyright
relevant acts.

POSSIBLECOMPROMISESOLUTION

Art. 13,para 4,
introductory part[see compromise text in row
4.
In the absence of
237A]
the authorisation referred
to in the second
subparagraph ofparagraph 1, Member
States shall provide thatan online content sharing
service provider shall not
be liable for acts ofcommunication to the
public or making
available to the public
within the meaning of this
Article when:[see compromise text in row
237A]

Art. 13,para 4,point (a)(a)
it demonstrates
that it has made best
efforts to prevent theavailability of specificworks or other subject
matter by implementing
effective and
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proportionate measures,in accordance withparagraph 5, to preventthe availability on its
services of the specificworks or other subject
matter identified byrightholders and forwhich the rightholders
have provided the service
with relevant andnecessary information for
the application of thesemeasures; and

POSSIBLECOMPROMISESOLUTION[see compromise text in row(b)upon notification
by rightholders of works 237A]
or other subject matter, it
has acted expeditiously
to remove or disable
access to these works orother subject matter andit demonstrates that it
has made its best efforts
to prevent theirusersfuture availability
through the measuresreferred to in point (a).

247.

248.

249.

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POSSIBLECOMPROMISESOLUTION

Art. 13,para 5,
introductory part5.
The measuresreferred to in point (a) ofparagraph 4 shall beeffective andproportionate, taking
into account, among
other factors:[see compromise text in row
237A]

Art. 13,para 5,point (a)(a)
the nature and size [see compromise text in row
237A]
of the services, inparticular whether they
are provided by amicroenterprise or asmall-sized enterprisewithin the meaning ofTitle I of the Annex toCommission
Recommendation
2003/361/EC, and theiraudience;[see compromise text in row
237A]

Art. 13,para 5,point (b)(b)
the amount andthe type of works orother subject matter
uploaded by the users of
the services;

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237A]

doc. 9134/18

Art. 13,para 5,point (c)(c)
the availability
and costs of the measures
as well as theireffectiveness in light oftechnologicaldevelopments in line with
the industry best practicereferred to in paragraph8.

[see compromise text in row
237A]

COMMISSIONPROPOSAL
COM(2016)593

Art. 13,para 6

6.
Member Statesshall ensure that online
content sharing service
providers andrightholders cooperatewith each other in adiligent manner to ensure
the effective functioningof the measures referred
to in point (a) ofparagraph 4 over time.
Online content sharing
service providers shallprovide rightholders, attheir request, withadequate information on
the deployment andfunctioning of these
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Art. 13,para 7

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EP TEXT84

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measures to allow theassessment of theireffectiveness, inparticular information on
the type of measures used
and, where licensing
agreements areconcluded between
service providers andrightholders, informationon the use of content
covered by theagreements.

7.
Member Statesshall ensure that themeasures referred to inparagraph 4 are
implemented by the
online content sharing
service provider without
prejudice to thepossibility for their users
to benefit fromexceptions or limitations
to copyright. For that
purpose, the service
providers referred to in

POSSIBLECOMPROMISESOLUTION[see compromise text in row
237A]

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EP TEXT

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paragraph 1 shall put inplace a complaints andredress mechanisms thatare is available to users of
the service in case of
disputes over theapplication of the measuresreffered to in paragraph 1
to their content.
Complaints submitted
under this mechanism
shall be processed by the
online content sharing
service provider incooperation with relevant
rightholders within areasonable period oftime. Rightholders shall
duly justify the reasonsfor their requests toremove or block access totheir specific works orother subject matter.
Member States shallendeavour to put in place
independent bodies toassess complaints related

POSSIBLECOMPROMISESOLUTION

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EP TEXT86

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to the application of themeasures.

[Paragraph 2 of the COM
proposal, amended]

POSSIBLECOMPROMISESOLUTION[see compromise text in row
8.
The Commission
237A]
and the Member Statesshall encourage
stakeholder dialogues todefine best practices forthe measures referred toin point (a) of paragraph
4. Member States shallalso endeavour toestablish mechanisms tofacilitate the assessmentof the effectiveness andproportionality of thesemeasures and provide theCommission regularly
with information on thosemechanisms. The
Commission shall, in
consultation with online
content sharing service
providers, rightholders
and other relevant
stakeholders and taking

EP TEXTCOUNCIL TEXTPOSSIBLECOMPROMISESOLUTION

DeletedLocationdoc. 9134/18

Article 13a

COMMISSIONPROPOSAL
COM(2016)593

into account the results ofthe stakeholder dialogues
and the national
mechanisms, issue
guidance on theapplication of themeasures referred to inpoint (a) of paragraph 4.

254.

Art. 13a,title

Deleted[Paragraph 3 of the COM
proposal, reworded]

255.

Art. 13a,sub-para 1

Member States shallprovide that disputes
between successors in title
and information society
services regarding theapplication of Article 13(1)may be subject to analternative dispute
resolution system.

Deleted256.

Art. 13a,sub-para 2

Member States shallestablish or designate an
impartial body with thenecessary expertise, with
87

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258.

259.

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Art. 13a,sub-para 3

Art. 13b,
title

Art. 13b

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POSSIBLECOMPROMISESOLUTION

Deletedthe aim of helping theparties to settle theirdisputes under this system.
The Member States shallinform the Commission of
the establishment of thisbody no later than (datementioned in Article
21(1)).

DeletedDeleted

Article 13b
Use of protected content
by information society
services providing
automated image
referencing
Member States shallensure that informationsociety service providers
that automatically
reproduce or refer tosignificant amounts ofcopyright-protected visual
works and make themavailable to the public forthe purpose of indexing
88

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261.

262.

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Art. -14,
title

COMMISSIONPROPOSAL
COM(2016)593

CHAPTER 3
Fair remuneration incontracts of authors andperformers

EP TEXT

and referencing conclude
fair and balanced
licensing agreements withany requestingrightholders in order toensure their fair
remuneration. Such
remuneration may be
managed by the collective
management organisationof the rightholders
concerned.

CHAPTER 3
Fair remuneration incontracts of authors andperformers
Article -14

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TITLE IV

MEASURES TO
ACHIEVE A WELLFUNCTIONING
MARKETPLACE FOR
COPYRIGHT

CHAPTER 3
Fair remuneration in
exploitation contracts ofauthors and performers

POSSIBLECOMPROMISESOLUTION[Deleted]

CHAPTER 3

Fair remuneration in[exploitation] contracts ofauthors and performers

GREEN

Article -14

263.

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EP TEXT

Art. -14,
para 1

1.
Member Statesshall ensure that authors
and performers receive
fair and proportionate
remuneration for the
exploitation of their works
and other subject matter,
including for their online
exploitation. This may beachieved in each sector
through a combination ofagreements, includingcollective bargaining
agreements, and statutory
remuneration
mechanisms.

Principle of fair andproportionate
remuneration

Art. -14,
para 22.
Paragraph 1 shallnot apply where an author
or performer grants a nonexclusive usage right forthe benefit of all users freeof charge.
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POSSIBLECOMPROMISESOLUTION

Principle of [fair][appropriate andproportionate]
remuneration

GREEN

1. Member States shallensure that when authors
and performers license ortransfer their exclusive
rights for the exploitation of
their works or other subject
matter they are entitled toreceive appropriate andproportionate remuneration.

GREEN

2. In the implementation ofthis principle into nationallaw, Member States shall befree to use different
mechanisms and take into

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POSSIBLECOMPROMISESOLUTION

account the principle ofcontractual freedom and afair balance of rights andinterests.

Deleted

Article 14
Transparency obligation

Art. -14,
para 3

Article 14
Transparency obligation

3.
Member Statesshall take account of thespecificities of each sector
in encouraging the
proportionate
remuneration for rights
granted by authors andperformers.

Article 14
Transparency obligation

1. Member States shallensure that authors andperformers receive on aregular basis, at least once a
year, and taking into accountDeleted

Article 14
Transparency obligation

1.
Member Statesshall ensure that authors
and performers receive ona regular basis, at least
once a year, and taking

Art. -14,
para 4Art. 14, title

266.

267.
Art. 14,para 1

1.
Member Statesshall ensure that authors
and performers receive ona regular basis, not lessthan once a year , and4.
Contracts shallspecify the remuneration
applicable to each mode of
exploitation.

268.

1.
Member States shallensure that authors andperformers receive on aregular basis and taking
into account the

91

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Art. 14,para 1a

COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

specificities of each sector, taking into account the
timely, adequate andspecificities of each sector
sufficient information on
and the relative
the exploitation of theirimportance of each
works and performancesindividual contribution,from those to whom theytimely adequate andhave licensed or transferred sufficient, accurate,
their rights, notably as
relevant andregards modes ofcomprehensive information
exploitation, revenues
on the exploitation of theirgenerated and remuneration works and performancesdue.
from those to whom they
have licensed or transferred
their rights, notably as
regards modes of
exploitation, direct andindirect revenues
generated, andremuneration due.
1a.
Member Statesshall ensure that where
the licensee or transfereeof rights of authors andperformers subsequently
licenses those rights toanother party, such party
shall share all information
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POSSIBLECOMPROMISESOLUTION

1a.
Member States shallensure that where the rights
referred to in paragraph 1
have subsequently been
licensed, authors andperformers or theirrepresentatives shall, attheir request, receive from

into account thethe specificities of eachspecificities of each sector, sector and the relative
timely, adequate andimportance of eachsufficient information on
individual contribution
the exploitation of theirtimely, [adequate andworks and performances
sufficient/ up to date,from those to whom they
relevant and comprehensive
have licensed or transferred information on thetheir rights or their
exploitation of their works
successors in title, notably and performances fromas regards modes of
those to whom they have
exploitation, revenues
licensed or transferred theirgenerated andrights or their successors inremuneration due.
title, notably as regards
modes of exploitation, direct
and indirect all revenues
generated and remuneration
due.

1a.
Member Statesshall ensure that where
the rights referred to inparagraph 1 havesubsequently been
licensed to another party,
authors and performers
may, at their request,

270.

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Art. 14,para 1a,sub-para 2

COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

referred to in paragraph 1
with the licensee ortransferee.

The main licensee ortransferee shall pass all
the information referred toin the first subparagraphon to the author or
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receive from those third
parties additional
information if their firstcontractual counterpart
does not hold all theinformation that would
be necessary for the
purposes of theinformation provision set
out in paragraph 1.
Member States may
provide that such request
to those third parties ismade directly by theauthor or performer orindirectly through thecontractual counterpartof the author or the
performer.

POSSIBLECOMPROMISESOLUTION

sub-licencees additional
information if their firstcontractual counterpart does
not hold all the informationthat would be necessary forthe purposes of paragraph 1.

Where this information isrequested, the firstcontractual counterpart ofauthors and performers
shall provide informationon the identity of those sublicensees.

Member States may providethat any such request to
those sub-licensees is madedirectly or indirectly throughthe contractual counterpartof the author or the
performer.

Deleted[integrated into row 219]

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EP TEXT

performer. That
information shall beunchanged, except in thecase of commerciallysensitive information as
defined by Union or
national law, which,without prejudice to
Articles 15 and 16a, may
be subject to a nondisclosure agreement, forthe purpose of preserving
fair competition. Where
the main licensee ortransferee does not provide
the information as
referred to in thissubparagraph in a timely
manner, the author or
performer shall be entitled
to request that information
directly from the sublicensee.
[See Council’s Article
14(1a) (row 269)]

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Art. 14,para 2

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2.
The obligation in
2.
The obligation in
2.
The obligation inparagraph 1 shall beparagraph 1 shall beparagraph 1 shall be
proportionate and effective proportionate and effective proportionate and effective
and shall ensure an
and shall ensure an
and shall ensure an
appropriate level ofappropriate a high level of appropriate level oftransparency in everytransparency in everytransparency in every
sector. However, in those
sector. However, in those
sector. However, incases where thecases where thethoseMember States may
administrative burden
administrative burden
provide that in duly
resulting from theresulting from thejustified cases where theobligation would be
obligation would be
administrative burden
disproportionate in view of disproportionate in view of resulting from thethe revenues generated by
the revenues generated by
obligation in paragraph 1
the exploitation of the work the exploitation of the work would bebecomeor performance, Memberor performance, Member
disproportionate in view ofStates may adjust theStates may adjust thethe revenues generated by
obligation in paragraph 1,
obligation in paragraph 1,
the exploitation of theprovided that the obligation provided that the obligation work or performance,
remains effective andremains effective andMember States may adjust
ensures an appropriate
ensures an appropriate athe obligation in paragraphlevel of transparency.
high level of transparency. 1, provided that is limited
to the obligation remains
effectivetypes and ensures
an appropriate level oftransparency.informationthat can reasonably be
expected in such cases.

95

POSSIBLECOMPROMISESOLUTIONGREEN

2.
The obligation inparagraph 1 shall be
proportionate and effective
and shall to ensure an
appropriate a high level oftransparency in every sector.
Member States may
provide that in duly
justified cases where theadministrative burden
resulting from the obligationin paragraph 1 would
bebecome disproportionate
in view of the revenues
generated by the exploitationof the work or performance,
the obligation is limited tothe types and level of
information that canreasonably be expected insuch cases.

272.

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Art. 14,para 3Art. 14,para 3a

COMMISSIONPROPOSAL
COM(2016)593
3.
Member States may Deleted
decide that the obligation inparagraph 1 does not apply
when the contribution of
the author or performer is
not significant having
regard to the overall workor performance.

EP TEXT

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3a. Members States may
provide that for agreements
subject to or based oncollective bargaining
agreements theGREEN[note to translators:“demonstrates”: ENequivalent for DE“darlegen”/"bescheinigen"]3.
Member States may 3.
Member States may
decide that the obligation
decide that the obligation inin paragraph 1 does notparagraph 1 does not apply
apply when thewhen the contribution of thecontribution of the author
author or performer is notor performer is not
significant having regard to
significant having regard to the overall work or
the overall work or
performance, unless theperformance.
author or performer
demonstrates that herequires the informationfor exercising his rights
under Article 15(1) andrequests the information
for that purpose.

3a.
Members States
may provide that foragreements subject to or
based on collective
bargaining agreements
the transparency rules of274.

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Art. 14,para 4

COMMISSIONPROPOSAL
COM(2016)593

4.
Paragraph 1 shallnot be applicable to entities
subject to the transparency
obligations established by
Directive 2014/26/EU.

EP TEXT

4.
Paragraph 1 shallnot be applicable to entities
subject to the transparency
obligations established by
Directive 2014/26/EU or tocollective bargaining
agreements, where thoseobligations or agreements
provide for transparency
requirements comparable
to those referred to inparagraph 2.

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POSSIBLECOMPROMISESOLUTIONGREEN

the relevant collective
transparency rules of thebargaining agreement are relevant collective
applicable provided thatbargaining agreement are
they meet the minimum
applicable provided thatcriteria laid down in thethey are comparable to thenational provisions
obligations / meet the
adopted in conformity
minimum criteria laid downwith the requirements of in the national provisions
paragraphs 1 to 3.
adopted in conformity withthe requirements ofparagraphs 1 to 3.

4.
Paragraph 1 shallnot be applicable toagreements concluded byentities subject to thetransparency obligations
established by defined in
Article 3(a) and (b) of
Directive 2014/26/EU. orby other entities subject
to the national rules
implementing Directive
2014/26/EU.

4. When Article 18 of
Directive 2014/26/EU isapplicable, the obligation
laid down in paragraph 1
shall not apply in respect ofagreements concluded byentities defined in Article
3(a) and (b) of Directive
2014/26/EU or by otherentities subject to thenational rules implementing
Directive 2014/26/EU.

275.

276.

Art. 15, title

Location

Article 15
Contract adjustment
mechanism

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Art. 15,[para 1(Council)]

EP TEXT

Article 15
Contract adjustment
mechanism

Member States shall ensure Member States shallthat authors and performers ensure, in the absence ofare entitled to request
collective bargaining
additional, appropriate
agreements providing for a
remuneration from thecomparable mechanism,
party with whom theythat authors and performers
entered into a contract foror any representative
the exploitation of theorganisation acting onrights when thetheir behalf are entitled toremuneration originally
request claim additional,
agreed is disproportionately appropriate and fair
low compared to the
remuneration from thesubsequent relevant
party with whom theyrevenues and benefits
entered into a contract forderived from thethe exploitation of the
exploitation of the works or rights when theperformances.
remuneration originallyagreed is
disproportionately low
compared to the subsequent
relevant direct or indirect
revenues and benefits
derived from the98doc. 9134/18

Article 15
Contract adjustment
mechanism

POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT

Article 15
Contract adjustment
mechanism

1.
Member States
GREEN
shall ensure that authors
1. Member States shalland performers are entitled ensure, in the absence of an
to request additional,
applicable collective
appropriate remuneration
bargaining agreementfrom the party with whom
providing for a comparable
they entered into a contract mechanism, that authors andfor the exploitation of theperformers or theirrights or their successors
representatives are entitledin title, when theto claim additional,
remuneration originallyappropriate and fairagreed isturns out to be
remuneration from the party
disproportionately low
with whom they entered into
compared to the subsequent a contract for the
relevant revenues andexploitation of the rights or
benefits derived from thetheir successors in title,
actual exploitation of thewhen the remuneration
works or performances.
originally agreed turns out tobe disproportionately low
compared to all thesubsequent relevant
revenues and derived from

277.

278.

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EP TEXTCOUNCIL TEXT
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POSSIBLECOMPROMISESOLUTION

the exploitation of the works
or performances.

[Article 15(1a) Council’s
text deleted/incorporated
into paragraph 1]

COMMISSIONPROPOSAL
COM(2016)593
exploitation of the works or
performances.

Art. 15,
para 1a1a.
Members States
may provide that foragreements subject to or
based on collective
bargaining agreements
the rules of the relevantcollective bargaining
agreement for the
adjustment of
remuneration are
applicable instead of thenational provisions
implementing thecontract adjustment
mechanism.

2.
Paragraph 1 shall not
be applicable to agreements
concluded by entities
defined in Article 3(a) and(b) of Directive 2014/26/EU
or by other entities which
are already subject to the[See Council’s Article
15(1a) (row277)]

Art. 15,
para 22.
Paragraph 1 shallnot be applicable toagreements concluded byentities defined in Article
3(a) and (b) of Directive
2014/26/EU or by otherentities subject to the
99

279.

280.

Location

Art. 16, title

Art. 16,[para 1(Council)]COMMISSIONPROPOSAL
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Article 16
Dispute resolution
mechanism

Member States shallprovide that disputes
concerning thetransparency obligation
under Article 14 and thecontract adjustment
mechanism under Article
15 may be submitted to a
voluntary, alternative
dispute resolution
procedure.

EP TEXT

Article 16
Dispute resolution
mechanism

Member States shallprovide that disputes
concerning thetransparency obligation
under Article 14 and thecontract adjustment
mechanism under Article
15 may be submitted to a
voluntary, alternative
dispute resolution
procedure. Member Statesshall ensure that
representative
organisations of authors
and performers may
initiate such procedures at
the request of one or moreauthors and performers.
100

COUNCIL TEXT
doc. 9134/18

national rules
implementing Directive
2014/26/EU.
Article 16

Dispute resolution
mechanismprocedure1.
Member Statesshall provide that disputes
concerning thetransparency obligation
under Article 14 and thecontract adjustment
mechanism under Article
15 may be submitted to a
voluntary, alternative
dispute resolution
procedure.

POSSIBLECOMPROMISESOLUTION

national rules implementing
Directive 2014/26/EU.

GREEN

Article 16

Dispute resolution
procedure

GREEN

Member States shall providethat disputes concerning thetransparency obligation
under Article 14 and thecontract adjustment
mechanism under Article 15
may be submitted to a
voluntary, alternative
dispute resolution
procedure. Member Statesshall ensure that
representative
organisations of authors
and performers may initiate
such procedures at the
specific request of one or

281.

282.

Location

Art. 16,
para 2Art. 16a(Council),
title

COMMISSIONPROPOSAL
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EP TEXT[See Council’s Article
16(2) (row 281)][See Parliament’s Article
16 last phrase (row 280)]101

COUNCIL TEXT
doc. 9134/18

2.
Member Statesshall ensure that
representative
organisations of authors
and performers,
including collective
management
organisations, may
initiate such disputes onbehalf of one or moreauthors and performers
at their request.
Article 16a

Contractual provisions

POSSIBLECOMPROMISESOLUTION

more authors andperformers.

[Article 16(2) Council’s text
deleted/incorporated into
paragraph 1]

GREEN

Article 16a

Contractual Common
provisions[Note to lawyer linguists:
this Article 16a (rows 282283) should be moved after
Article 16a set out in rows284-288)]

1

283.

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COUNCIL TEXT
doc. 9134/18

1. Member States shallensure that any contractual
provision which prevents
the compliance with theprovisions in Articles 14
and 15 of this Chapter(*)
Directive shall be
unenforceable in relation toauthors and performers.

GREEN

Member States shallensure that any
contractual provision
which prevents thecompliance with theprovisions in Articles 14
and 15 of this Directive
shall be unenforceable inrelation to authors andperformers.

2. Members States shallprovide that Articles -14 to16a(**) of this Directive do
not apply to authors of acomputer program in thesense of Article 2 ofDirective 2009/24/EC of theEuropean Parliament andof the Council of 23 April
2009 on the legal protectionof computer programs.1

Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs(Codified version), OJ L 111, 5.5.2009, p. 16-22
102

284.

Art. 16a(EP), title

Location

285.

Art. 16a(EP),
para 1COMMISSIONPROPOSAL
COM(2016)593

COUNCIL TEXTGREENArticle 16 a

EP TEXTPOSSIBLECOMPROMISESOLUTION

Article 16 a

Right of revocation

doc. 9134/18[(*) 'Chapter' refers to
Articles 14,15 and 16, ie theprovisions of the initial
Commission proposal; seealso recital (43a), row 99]

Right of revocation

GREEN1.
MemberStates shall ensure ][mayprovide] that where an
author or a performer has
licensed or transferred her or
his rights concerning a workor other protected subjectmatter on an exclusive basis,
the author or performer may
revoke in whole or in partthe licence or the transfer ofrights where there is a lack[(**)the reference to Article
16a here should beunderstood as reference to
Article 16a on revocationright, rows284-288)]

1.
Member Statesshall ensure that where an
author or a performer has
licensed or transferred heror his rights concerning awork or other protectedsubject-matter on an
exclusive basis, the author
or performer has a right ofrevocation where there isan absence of exploitationof the work or other
103

286.

Location

Art. 16a(EP),
para 2

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EP TEXT

protected subject matter orwhere there is acontinuous lack of regular
reporting in accordancewith Article 14. Member
States may provide for
specific provisions taking
into account the
specificities of different
sectors and works andanticipated exploitation
period, notably provide fortime limits for the right ofrevocation.
2.
The right ofrevocation provided for inparagraph 1 may be
exercised only after areasonable time from theconclusion of the licenceor transfer agreement, andonly upon written
notification setting anappropriate deadline bywhich the exploitation of
the licensed or transferred
rights is to take place.
104

COUNCIL TEXT
doc. 9134/18

POSSIBLECOMPROMISESOLUTION

of exploitation of the workor other protected subjectmatter [EP: or where there isa continuous lack of regular
reporting in accordance with
Article 14].

GREEN2.
Specific
provisions for themechanism for revocation
shall may be provided forin national law taking into
account(a)the specificities ofthe different sectors and thedifferent types of works andperformances; andLocation
COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

After the expiration of that
deadline, the author or
performer may choose toterminate the exclusivity of
the contract instead of
revoking the rights. Wherea work or other subjectmatter contains thecontribution of a pluralityof authors or performers,
the exercise of theindividual right ofrevocation of such authors
or performers shall be
regulated by national law,
laying down the rules on
the right of revocation forcollective works, taking
into account the relative
importance of theindividual contributions.

105

COUNCIL TEXT
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POSSIBLECOMPROMISESOLUTION(b)
where a work orother subject-matter contains
the contribution of morethan one author or
performer, the relative
importance of the individual
contributions and thelegitimate interests of all
authors and performers
affected by the exercise of
the revocation mechanism
by an individual author or
performer.

Member States may exclude
works or other subject
matter from the applicationof the mechanism if suchworks or subject matter
usually contain contributionsof a plurality of authors or
performers.

Member States may providethat the revocation
mechanism shall be
exercised only within a
specific time frame, where
this is duly justified by the287.

Location

Art. 16a(EP),
para 3

COMMISSIONPROPOSAL
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EP TEXT

3.
Paragraphs 1 and 2
shall not apply if the nonexercise of the rights is
predominantly due tocircumstances which theauthor or the performer
can be reasonably
expected to remedy.

106

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POSSIBLECOMPROMISESOLUTION

specificities of the sector,
type of work or protectedsubject matter concerned.

Member States may providethat that authors or
performers may choose toterminate the exclusivity of
the contract instead of
revoking the rights.

GREEN3.
MemberStates may shall providethat the revocation provided
for in paragraph 1 may be
exercised only after areasonable time after theconclusion of the licence ortransfer agreement. The
author or performer shallnotify the person to whom
the rights have been licensed
or transferred and set anappropriate deadline bywhich the exploitation of thelicensed or transferred rights
is to take place. After the

288.

289.

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Art. 16a(EP),
para 4

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TITLE V
FINAL PROVISIONSEP TEXT

4.
Contractual orother arrangements
derogating from the rightof revocation shall be
lawful only if concluded
by means of an agreement
which is based on acollective bargaining
agreement.

TITLE V
FINAL PROVISIONS107

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doc. 9134/18

TITLE V
FINAL PROVISIONSPOSSIBLECOMPROMISESOLUTION

expiration of that deadline,
the author or performer may
choose to terminate theexclusivity of the contract
instead of revoking thelicense or the transfer.

GREEN[EP: 4. Paragraph 1
shall not apply if the nonexercise of the rights is
predominantly due tocircumstances which theauthor or the performer canbe reasonably expected to
remedy.][EP: 5. Member States may
provide that any contractual
provision derogating fromthe revocation mechanism
shall be enforceable only if
it is based on a collective
bargaining agreement.]

TITLE V
FINAL PROVISIONSArticle 17
Amendments to otherdirectives
1.
Directive 96/9/EC
is amended as follows:

Article 17
Amendments to otherdirectives

1.
Directive 96/9/EC
is amended as follows:

Article 17
Amendments to otherdirectives

doc. 9134/18

1.
Directive 96/9/EC isamended as follows:

Article 17
Amendments to otherdirectives

POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT

Art. 17,
title
1.
Directive 96/9/EC
is amended as follows:(a)
In Article 6(2), (a)In Article 6(2), point
point (b) is replaced by the (b) is replaced by thefollowing:
following:

EP TEXT

290.

Art. 17,para 1(a)
In Article 6(2),point (b) is replaced by thefollowing:

Location291.
(a)
In Article 6(2),point (b) is replaced by thefollowing:

COMMISSIONPROPOSAL
COM(2016)593

292.

Art. 17,para 1,point (a)"(b) where there is use forthe sole purpose ofillustration for teachingor scientific research, aslong as the source isindicated and to theextent justified by the
non-commercial purposeto be achieved, without
prejudice to the
exceptions and thelimitation provided for in
Articles 3 and 4 of
Directive [thisDirective];"

GREEN

293.

Art. 17,para 1,point (a)"(b) where there is use
for the sole purpose ofillustration for teachingor scientific research, aslong as the source isindicated and to theextent justified by the
non-commercial
purpose to be achieved,
without prejudice to the
exceptions and thelimitation provided forin Directive [thisDirective];""(b) where there is use
for the sole purpose ofillustration for teachingor scientific research, aslong as the source isindicated and to theextent justified by the
non-commercial
purpose to be achieved,
without prejudice to the
exceptions and thelimitation provided forin Articles 3 and 4 of
Directive [thisDirective];""(b) where there is use
for the sole purpose ofillustration forteaching or scientificresearch, as long as thesource is indicated andto the extent justified
by the non-commercial
purpose to beachieved, without
prejudice to the
exceptions and thelimitation provided forin Directive [thisDirective];"108

Location
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EP TEXTCOUNCIL TEXT
doc. 9134/18

POSSIBLECOMPROMISESOLUTION(b)
In Article 9, point (b)In Article 9, point (b)(b) is replaced by the is replaced by the following:
following:

294.

(b)
In Article 9, point(b) is replaced by thefollowing:"(b) in the case of
extraction for the
purposes of illustration
for teaching or scientificresearch, as long as thesource is indicated andto the extent justified by
the non-commercial
purpose to be achieved,
without prejudice to the
exceptions and thelimitation provided forin Directive [thisDirective];"2.
Directive2.
Directive
2001/29/EC is amended as 2001/29/EC is amended asfollows:
follows:

297.

(b)
In Article 9, point(b) is replaced by thefollowing:

Art. 17,para 1,point (b)"(b) in the case of
extraction for the
purposes of illustration
for teaching or scientificresearch, as long as thesource is indicated andto the extent justified by
the non-commercial
purpose to be achieved,
without prejudice to the
exceptions and thelimitation provided forin Directive [thisDirective];"2.
Directive
2001/29/EC is amended asfollows:(a)
In Article 5(2), (a)In Article 5(2), point
point (c) is replaced by the (c) is replaced by thefollowing:
following:"(b) in the case of extraction
for the purposes of illustration
for teaching or scientificresearch, as long as the source
is indicated and to the extent
justified by the noncommercial purpose to beachieved, without prejudice tothe exceptions and thelimitation provided for in
Articles 3 and 4 of Directive[this Directive];"

GREEN

295.

Art. 17,para 1,point (b)2.
Directive
2001/29/EC is amended asfollows:(a)
In Article 5(2),point (c) is replaced by thefollowing:"(b) in the case of
extraction for the
purposes of illustration
for teaching or scientificresearch, as long as thesource is indicated andto the extent justified by
the non-commercial
purpose to be achieved,
without prejudice to the
exceptions and thelimitation provided forin Articles 3 and 4 of
Directive [thisDirective];"

Art. 17,para 2(a)
In Article 5(2),point (c) is replaced by thefollowing:

296.

Art. 17,para 2,point (a)

109

298.

Location
COMMISSIONPROPOSAL
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EP TEXT(b)
In Article 5(3),point (a) is replaced by thefollowing:

Art. 17,para 2,point (a)(b)
In Article 5(3),point (a) is replaced by thefollowing:"(c) in respect of specificacts of reproduction madeby publicly accessible
libraries, educational
establishments or
museums, or by archives,
which are not for direct
or indirect economic orcommercial advantage,
without prejudice to the
exceptions and thelimitation provided for in
Directive [thisDirective];"299.

Art. 17,para 2,point (b)"(a) use for the sole
purpose of illustration forteaching or scientificresearch, as long as thesource, including theauthor's name, is"(c) in respect ofspecific acts ofreproduction made bypublicly accessible
libraries, educational
establishments or
museums, or byarchives, which are notfor direct or indirect
economic or commercial
advantage, without
prejudice to the
exceptions and thelimitation provided forin Directive [thisDirective];"

300.

Art. 17,para 2,point (b)"(a) use for the sole
purpose of illustration forteaching or scientificresearch, as long as thesource, including theauthor's name, is

110

COUNCIL TEXT
doc. 9134/18"(c) in respect ofspecific acts ofreproduction made bypublicly accessible
libraries, educational
establishments or
museums, or byarchives, which are notfor direct or indirect
economic orcommercial advantage,
without prejudice to the
exceptions and thelimitationexception
provided for in Article
5 of Directive [thisDirective];"

POSSIBLECOMPROMISESOLUTION

GREEN"(c) in respect of specificacts of reproduction
made by publicly
accessible libraries,
educational
establishments or
museums, or by archives,
which are not for direct
or indirect economic orcommercial advantage,
without prejudice to the
exception and thelimitations provided forin Article 5 of Directive[this Directive];""(a) use for the sole
purpose of illustration forteaching or scientificresearch, as long as thesource, including the

GREEN

(b)
In Article 5(3), (b)In Article 5(3), point
point (a) is replaced by the (a) is replaced by thefollowing:
following:"(a) use for the sole
purpose of illustration
for teaching or scientificresearch, as long as thesource, including theauthor's name, isEP TEXT(c)
In Article 12(4), thefollowing points are added:

Location
COMMISSIONPROPOSAL
COM(2016)593(c)
In Article 12(4), thefollowing points are added:

indicated, unless thisturns out to be impossible
and to the extent justified
by the non-commercial
purpose to be achieved,
without prejudice to the
exceptions and thelimitation provided for in
Directive [thisDirective];"301.

Art. 17,para 2,point (c)"(e) to examine theimpact of thetransposition of Directive[this Directive] on thefunctioning of the internalmarket and to highlight
any transpositiondifficulties;

indicated, unless thisturns out to be impossible
and to the extent justified
by the non-commercial
purpose to be achieved,
without prejudice to the
exceptions and thelimitation provided for in
Directive [thisDirective];"

302.

Art. 17,para 2,point (c)"(e) to examine theimpact of thetransposition of Directive[this Directive] on thefunctioning of theinternal market and tohighlight any
transposition difficulties;

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COUNCIL TEXT
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indicated, unless thisturns out to be
impossible and to theextent justified by the
non-commercial
purpose to be achieved,
without prejudice to the
exceptions and thelimitation provided forin Articles 3 and 4 of
Directive [thisDirective];"

POSSIBLECOMPROMISESOLUTION

author's name, isindicated, unless thisturns out to be impossible
and to the extent justified
by the non-commercial
purpose to be achieved,
without prejudice to the
exceptions and thelimitation provided for in
Articles 3 and 4 of
Directive [thisDirective];""(e) to examine the impactof the transposition of
Directive [this Directive] on
the functioning of theinternal market and tohighlight any transpositiondifficulties;

In Article 12(4), the(c)In Article 12(4), the (c)following points are added: following points are added:"(e) to examine theimpact of thetransposition of Directive[this Directive] on thefunctioning of theinternal market and tohighlight any
transposition difficulties;

303.

304.

EP TEXTCOUNCIL TEXT(f) to facilitate the exchange
of information on therelevant developments inlegislation and case law as
well as on the practicalapplication of the measurestaken by Member States toimplement Directive [thisDirective];

Location(f) to facilitate theexchange of informationon the relevant
developments inlegislation and case law
as well as on the practicalapplication of themeasures taken by
Member States toimplement Directive [thisDirective];

POSSIBLECOMPROMISESOLUTION(f) to facilitate theexchange of informationon the relevant
developments inlegislation and case law
as well as on the practicalapplication of themeasures taken by
Member States toimplement Directive [thisDirective];doc. 9134/18

Art. 17,para 2,point (c)(f) to facilitate theexchange of informationon the relevant
developments inlegislation and case law
as well as on the practicalapplication of themeasures taken by
Member States toimplement Directive [thisDirective];

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Art. 17,para 2,point (c)Member States may adopt ormaintain in force broader
provisions, compatible with
theexceptions
andlimitations set out in

GREEN

Article 17 aGREEN(g) to discuss any otherquestions arising from theapplication of Directive [thisDirective]."
Article 17 a(g) to discuss any otherquestions arising fromthe application of
Directive [thisDirective]."

Art. 17a,
title(g) to discuss any otherquestions arising from theapplication of Directive[this Directive]."

305.

Art. 17a(g) to discuss any otherquestions arising from theapplication of Directive[this Directive]."

306.

Member States may adopt
or maintain in force
broader provisions,compatible with the
exceptions and limitations
existing in Union law, foruses covered by the112

EP TEXTCOUNCIL TEXT

Article 18
Application in time

Article 18
Application in time

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Article 18
Application in time

doc. 9134/18

Article 18
Application in time1.
This Directive shallapply in respect of all works
and other subject-matter
which are protected by theMember States' legislationin the field of copyright onor after [the date mentioned
in Article 21(1)].

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Art. 18

1.
This Directive shallapply in respect of all
works and other subjectmatter which are protectedby the Member States'
legislation in the field of
copyright on or after [thedate mentioned in Article
21(1)].

exceptions or thelimitation provided for inthis Directive.

307.
Art. 18,
para 11.
This Directive shallapply in respect of all
works and other subjectmatter which are protectedby the Member States'
legislation in the field of
copyright on or after [thedate mentioned in Article
21(1)].

Directives 96/9/EC and2001/29/EC, for uses orfields covered by the
exceptions or limitations
provided for in this Directive
and on condition that theirapplicationdoes
notadversely
affectnor
circumvent the mandatory
rules set out in thisDirective.

308.

1.
This Directive shallapply in respect of all
works and other subjectmatter which are protectedby the Member States'
legislation in the field of
copyright on or after [thedate mentioned in Article
21(1)].

2.

(Deleted)
Deleted[Deleted]

Art. 18,
para 2309.

2.
The provisions ofArticle 11 shall also apply
to press publications
published before [the date

113

3.
This Directive shallapply without prejudice toany acts concluded andrights acquired before [thedate mentioned in Article
21(1)].

Article 19
Transitional provision3.
This Directive shallapply without prejudice toany acts concluded andrights acquired before [thedate mentioned in Article
21(1)].

doc. 9134/18

Article 19
Transitional provision3.
This Directive shallapply without prejudice toany acts concluded andrights acquired before [thedate mentioned in Article
21(1)].

POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT

3.
This Directive shallapply without prejudice toany acts concluded andrights acquired before [thedate mentioned in Article
21(1)].

Article 19
Transitional provision

Agreements for the licenceor transfer of rights ofauthors and performers shallbe subject to thetransparency obligation in
Article 14 as from [one year
after the date mentioned in
Article 21(1)].

EP TEXT

Article 19
Transitional provision

Agreements for the licenceor transfer of rights ofauthors and performers
shall be subject to thetransparency obligation in
Article 14 as from [oneyear after the datementioned in Article
21(1)].

Article 20
Protection of personal data

Location

Art. 19, title

Agreements for the licenceor transfer of rights ofauthors and performers
shall be subject to thetransparency obligation in
Article 14 as from [oneyear after the datementioned in Article
21(1)].

Article 20
Protection of personal data

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311.
Art. 19

Agreements for the licenceor transfer of rights ofauthors and performers
shall be subject to thetransparency obligation in
Article 14 as from [oneyear after the datementioned in Article
21(1)].

Article 20
Protection of personal data

mentioned in Article
21(1)].

312.

Art. 20, title
Article 20
Protection of personal data

Art. 18,
para 3313.
Art. 20

310.

314.

The processing of personal The processing of personal The processing of personal The processing of personal
data carried out within thedata carried out within thedata carried out within thedata carried out within theframework of this Directive framework of this Directive framework of this Directive framework of this Directive
114

315.
316.

317.

shall be carried out incompliance with Directives
95/46/EC and 2002/58/EC.

doc. 9134/18

Article 21
Transposition

shall be carried out incompliance with Directives
95/46/EC and 2002/58/EC.

POSSIBLECOMPROMISESOLUTION
COUNCIL TEXT

shall be carried out incompliance with Directives
95/46/EC and 2002/58/EC.

Article 21
Transposition

1.
Member States shallbring into force the laws,
regulations andadministrative provisions
necessary to comply withthis Directive by [[12][ 24 ]months after entry into
force] at the latest. They
shall forthwith communicate
to the Commission the textof those provisions.

EP TEXT

shall be carried out incompliance with Directives
95/46/EC and 2002/58/EC.
Article 21
Transposition

1.
Member Statesshall bring into force thelaws, regulations andadministrative provisions
necessary to comply withthis Directive by [1224months after entry into
force] at the latest. They
shall forthwith
communicate to theCommission the text of
those provisions.

When Member States adopt
those provisions, they shallcontain a reference to thisDirective or be accompanied
by such a reference on theoccasion of their official
publication. Member States

Location

Article 21
Transposition

1.
Member Statesshall bring into force thelaws, regulations andadministrative provisions
necessary to comply withthis Directive by [12months after entry into
force] at the latest. They
shall forthwith
communicate to theCommission the text of
those provisions.

When Member States adopt
those provisions, they shallcontain a reference to thisDirective or beaccompanied by such areference on the occasionof their official publication.
Member States shall

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Art. 21,
para 1

1.
Member States shallbring into force the laws,
regulations andadministrative provisions
necessary to comply withthis Directive by [12months after entry into
force] at the latest. They
shall forthwith
communicate to theCommission the text of
those provisions.

When Member States adopt
those provisions, they shallcontain a reference to thisDirective or beaccompanied by such areference on the occasionof their official publication.
Member States shallArt. 21, title

Art. 21,
para 1, subpara 2

When Member States adopt
those provisions, they shallcontain a reference to thisDirective or beaccompanied by such areference on the occasionof their official publication.
Member States shall

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318.

319.
320.

320A

Location

Art. 21,
para 2Art. 22, title
Art. 22,para 1COUNCIL TEXT

determine how suchreference is to be made.

2.
Member States shallcommunicate to theCommission the text of themain provisions of nationallaw which they adopt in thefield covered by thisDirective.

shall determine how suchreference is to be made.

EP TEXT

determine how suchreference is to be made.

2.
Member Statesshall communicate to theCommission the text of themain provisions of nationallaw which they adopt in thefield covered by thisDirective.

Article 22
Review

POSSIBLECOMPROMISESOLUTION

determine how suchreference is to be made.
2.
Member Statesshall communicate to theCommission the text of themain provisions of nationallaw which they adopt in thefield covered by thisDirective.

Article 22
Review

1.
No sooner than [fiveyears after the datementioned in Article 21(1)],the Commission shall carryout a review of thisDirective and present areport on the main findings
to the European Parliament,
the Council and theEuropean Economic andSocial Committee.

doc. 9134/18

2.
Member States shallcommunicate to theCommission the text of themain provisions of nationallaw which they adopt in thefield covered by thisDirective.
Article 22
Review

1.
No sooner than
[five years after the datementioned in Article
21(1)], the Commission
shall carry out a review ofthis Directive and present areport on the main findings
to the European
Parliament, the Council
and the European
Economic and Social
Committee.

COMMISSIONPROPOSAL
COM(2016)593

Article 22
Review

1.
No sooner than
[five years after the datementioned in Article
21(1)], the Commission
shall carry out a review ofthis Directive and present areport on the main findings
to the European
Parliament, the Council
and the European
Economic and Social
Committee.

The Commission shall, by[three years after the end

1.
No sooner than
[five years after the datementioned in Article
21(1)], the Commission
shall carry out a review ofthis Directive and present areport on the main findings
to the European Parliament,
the Council and theEuropean Economic andSocial Committee.

116

321.

Location

Art. 22,para 2

COMMISSIONPROPOSAL
COM(2016)593
EP TEXT

2.
Member States shall 2.
Member States
provide the Commission
shall provide thewith the necessary
Commission with theinformation for thenecessary information for
preparation of the report
the preparation of thereferred to in paragraph 1.
report referred to inparagraph 1.

117

COUNCIL TEXT
doc. 9134/18

2.
Member Statesshall provide theCommission with thenecessary information forthe preparation of thereport referred to inparagraph 1.

POSSIBLECOMPROMISESOLUTION

of transposition deadline
set out in Article 21(1)],assess the impact of thespecific liability regime of
Article 13 applicable toonline content sharing
service providers whichhave an annual turnover ofless than EUR 10 million
and whose services havebeen available to the
public in the Union for lessthan three years
under(4aa) and, if
appropriate, take action inaccordance with theconclusions of its
assessment.

2.
Member States shallprovide the Commission
with the necessary
information for the
preparation of the reportreferred to in paragraph 1.

COUNCIL TEXTPOSSIBLECOMPROMISESOLUTIONEP TEXT

doc. 9134/18

Article 23
Entry into force

Location

Article 23
Entry into force

COMMISSIONPROPOSAL
COM(2016)593
Article 23
Entry into force

Article 23
Entry into force

This Directive shall enter
into force on the twentiethday following that of its
publication in the Official
Journal of the European
Union.

Article 24
Addressees

Art. 23, title
This Directive shall enter
into force on the twentiethday following that of its
publication in the Official
Journal of the European
Union.

Article 24
Addressees

322.
This Directive shall enter
into force on the twentiethday following that of its
publication in the Official
Journal of the European
Union.

Article 24
Addressees

This Directive is addressedto the Member States.

This Directive shall enter
into force on the twentiethday following that of its
publication in the Official
Journal of the European
Union.

Article 24
Addressees

This Directive is addressedto the Member States.

Art. 23

Art. 24, title
Art. 24

This Directive is addressedto the Member States.

323.

324.
325.

This Directive is addressedto the Member States.

118