Council of theEuropean Union
Brussels, 15 April 2019
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Interinstitutional File:
2016/0280(COD)

CODEC 814
PI 61
RECH 196
EDUC 183
COMPET 290
AUDIO 54CULT 59
DIGIT 66
TELECOM 152'I/A' ITEM NOTE
From:
To:

General Secretariat of the Council
Permanent Representatives Committee/Council

Subject:

Draft DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL on copyright and related rights in the Digital Single Market andamending Directives 96/9/EC and 2001/29/EC (first reading)- Adoption of the legislative act- Statements

Joint statement by the Netherlands, Luxembourg, Poland, Italy and Finland
The objectives of this Directive were to enhance the good functioning of the internal market and tostimulate innovation, creativity, investment and production of new content, also in the digitalenvironment. The signatories support these objectives. Digital technologies have radically changed
the way content is produced, distributed and accessed. The legislative framework needs to reflect
and guide these changes.

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However, in our view, the final text of the Directive fails to deliver adequately on theabove-mentioned aims. We believe that the Directive in its current form is a step back for theDigital Single Market rather than a step forward.
Most notably we regret that the Directive does not strike the right balance between the protection ofright holders and the interests of EU citizens and companies. It therefore risks to hinder innovation
rather than promote it and to have a negative impact the competitiveness of the European Digital
Single Market.
Furthermore, we feel that the Directive lacks legal clarity, will lead to legal uncertainty for many
stakeholders concerned and may encroach upon EU citizens’ rights.
We therefore cannot express our consent with the proposed text of the Directive.
Statement by Estonia
Estonia has always supported the objective of the Directive, namely better access to content online,
the functioning of key exceptions in the digital and cross-border environment and the better andbalanced functioning of the copyright marketplace.
However, Estonia considers that the final text of the Directive does not strike a sufficient balance
between different interests in all aspects.
Furthermore, Estonia has recently had parliamentary elections and our new government andparliament have not been able to give their position on the final compromise text.
Statement by Germany
1.

The German Federal Government agrees with the proposed Directive on copyright and related
rights in the Digital Single Market (hereinafter: ‘the Directive’) in the version set out in thetrilogue compromise of 13 February 2019, because the reform as a whole achieves urgently
needed adjustments to the outdated European legal framework, such as the provisions on text
and data mining, out-of-commerce works and contract law for performers.

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2.

At the same time, the German Federal Government regrets that it was not possible to agree ona concept for the copyright responsibility of upload platforms that could be broadly supportedby all parties. There is widespread consensus that creatives should participate in theexploitation of their content through upload platforms. However, in particular the obligation
provided for in Article 17 of the Directive to ensure the permanent ‘stay down’ of protected
content and the algorithm-based solutions (‘upload filters’) likely to be used in this context
have met with serious reservations and widespread criticism from the German public. The
vote in the European Parliament on 26 March 2019 also revealed the huge gulf between
supporters and critics.

3.

The focus of our efforts is on performers, authors and ultimately all creatives who naturally
make use of the new tools that digitisation and connectivity provide for creative work. The
German Federal Government is of course not questioning the need to protect creative work on
the internet, and to ensure creatives receive appropriate remuneration for such work.

4.

Under Article 17(10), the European Commission is required to conduct a dialogue with allinterest groups concerned in order to develop guidelines for the application of Article 17. The
provision explicitly calls for a balance to be maintained between fundamental rights and thepossibility of using protected content on upload platforms within the framework of legal
authorisations. The German Federal Government therefore assumes that this dialogue is basedon a spirit of guaranteeing appropriate remuneration for creatives, preventing ‘upload filters’
wherever possible, ensuring freedom of expression and safeguarding user rights. The German
Federal Government assumes that uniform implementation throughout the Union will beagreed on in this dialogue, because fragmentary implementation with 27 national variants
would not be compatible with the principles of a European Digital Single Market. On thebasis of this declaration, the German Federal Government will participate in this dialogue.

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5.

Where technical solutions are used at all in that connection, the data protection requirementsof the General Data Protection Regulation must be adhered to and the EU should encourage
the development of open-source technologies with open interfaces (APIs). Open-source
software guarantees transparency, while open interfaces ensure interoperability andstandardisation. This can prevent market-dominant platforms from further consolidating theirmarket power by means of their established filtering technology. At the same time, the EU
must develop concepts that counteract a de facto copyright register in the hands of dominant
platforms by means of public, transparent notification procedures.

6.

First of all, the requirements laid down in Article 2(6) of the Directive must be addressed andclarified, since the rules are aimed solely at those market-dominant platforms which makelarge quantities of copyright-protected uploads accessible and which base their commercial
business model on such a practice, i.e. services such as YouTube or Facebook. At the sametime, we will make it clear that services such as Wikipedia, university repositories, blogs andforums, software platforms such as Github, special-interest offers without any connection to
the creative industry, messenger services such as WhatsApp, sales portals or cloud services
are not platforms within the meaning of Article 17. In addition, we will ensure an exemption
for start-ups.

7.

Furthermore, it is clear that upload platforms should continue to be available as free,uncensored communication channels for civil society in the future. Article 17 (7) and (8)stipulate in that connection that protective measures for upload platforms must not impede thepermitted use of protected content. We are particularly committed to this because upload
platforms are also a springboard for creatives, enabling them to reach a worldwide audience
without a publisher or a label.

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8.

The aim must be to make the ‘uploadfilter’ instrument largely superfluous. Each permanent‘stay down’ mechanism (‘uploadfilter’) must comply with the principle of proportionality.
Procedural guarantees, in particular, could be considered, for example when users notify thatthey are lawfully uploading content from third parties. In these cases the deletion could not beperformed automatically, but only after a check by a person. At the same time, theproprietorship of any content that has to be removed should be sufficiently proven, unless theinformation comes from a ‘trusted flagger’. In all events the platforms must guarantee easy
access to a complaint mechanism for solving contentious cases effectively and as rapidly aspossible.

9.

In addition, the use of protected content on upload platforms for criticism or reviews, forcaricatures, parodies or pastiches, or even in the context of the ‘quotation barrier’, is permitted
and free of charge. In such cases the rightholder does not suffer any economic loss anyway.
For all other uses platforms should acquire licences, if available relatively easily and for a fair
tariff. We will examine how the fair participation of creatives in this licence revenue can be
guaranteed through direct payment claims, including in those cases where the label, publisher
or producer have the exclusive rights. It is also necessary to guarantee an appropriate
remuneration for any new content created on upload platforms and used for commercial
purposes. Above all, the proceeds from uses on upload platforms that are desired for politicalreasons must also reach the creatives themselves.

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Article 17 aims to monetise the use of protected content on upload platforms and to ensure
appropriate and fair remuneration for authors and performers. The German Federal
Government shares this goal. In the European compromise, licensing is the method chosen toachieve this. Article 17(4) provides that, in order to fulfil their responsibilities, upload
platforms must have ‘made best efforts’ to obtain licences. This will be crucial in theimplementation of this provision. Workable solutions for obtaining licences must be found.
Although requirements which are unreasonable in practice cannot be imposed on platforms, itis necessary to ensure that efforts to obtain licences are combined with fair offers ofremuneration.

11.

In order to resolve this issue – of how licences can, as far as possible, be concluded for allcontent on upload platforms – copyright law provides for many other mechanisms besides‘traditional’ individual licensing (e.g. exceptions and limitations, possibly combined withremuneration rights; the option of converting exclusive rights into remuneration rights; theobligation to conclude contracts on reasonable terms; and the involvement of associations ofcreative artists such as collecting societies).

12.

The Federal Government will examine all of these models. Should it appear that theimplementation has led to a restriction of freedom of expression or should the guidelines set
out above encounter obstacles in EU law, the Federal Government will work to ensure that theshortcomings identified in EU copyright law are corrected.

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