Council of theEuropean Union
Brussels, 20 February 2019
(OR. en)6637/19
Interinstitutional File:
2016/0280(COD)
AUDIO 31COMPET 161
CULT 33
EDUC 80
PI 37
RECH 105
TELECOM 75
CODEC 489
DIGIT 40
NOTE
From:
To:

General Secretariat of the Council
Permanent Representatives Committee

No. prev. doc.:
No. Cion doc.:

6382/1912254/16

Subject:

Proposal for a Directive of the European Parliament and of the Council on
Copyright in the Digital Single Market- Outcome of proceedings

Delegations will find attached the compromise text on the above mentioned proposal as approvedby the Permanent Representatives Committee on 20 February 2019.

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ANNEX
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on copyright in the Digital Single Market(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Articles 53(1), 62 and 114 thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Having regard to the opinion of the European Economic and Social Committee1,
Having regard to the opinion of the Committee of the Regions2,
Acting in accordance with the ordinary legislative procedure,

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

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Whereas:(1)

The Treaty provides for the establishment of an internal market and the institution of asystem ensuring that competition in the internal market is not distorted. Harmonisation of
the laws of the Member States on copyright and related rights should contribute further tothe achievement of those objectives.

(2)

The directives which have been adopted in the area of copyright and related rights contributeto the functioning of the internal market, provide for a high level of protection forrightholders, facilitate the clearance of rights and create a framework wherein the
exploitation of works and other protected subject-matter can take place. This harmonised
legal framework contributes to the good functioning of the internal market; it stimulates
innovation, creativity, investment and production of new content, also in the digital
environment, with a view to avoiding fragmentation of the internal market. The protection
provided by this legal framework also contributes to the Union's objective of respecting andpromoting cultural diversity while at the same time bringing the European common cultural
heritage to the fore. Article 167(4) of the Treaty on the Functioning of the European Union
requires the Union to take cultural aspects into account in its action.

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(3)

Rapid technological developments continue to transform the way works and other subjectmatter are created, produced, distributed and exploited. New business models and newactors continue to emerge. Relevant legislation needs to be future proof so as not to restrict
technological development. The objectives and the principles laid down by the Union
copyright framework remain sound. However, legal uncertainty remains, for bothrightholders and users, as regards certain uses, including cross-border uses, of works andother subject-matter in the digital environment. As set out in the Communication of theCommission entitled 'Towards a modern, more European copyright framework'3, in someareas it is necessary to adapt and supplement the current Union copyright framework
keeping a high level of protection of copyright and related rights. This Directive provides forrules to adapt certain exceptions and limitations to digital and cross-border environments, aswell as measures to facilitate certain licensing practices notably but not only as regards thedissemination of out-of-commerce works and the online availability of audiovisual works onvideo-on-demand platforms with a view to ensuring wider access to content. It also contains
rules to facilitate the use of content in the public domain. In order to achieve a wellfunctioning and fair marketplace 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 transparency of authors' andperformers' contracts, on authors’ and performers’ remuneration, as well as a mechanism forthe revocation of the rights that authors and performers have transferred on an exclusive
basis.

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COM(2015) 626 final.

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(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 the European Parliamentand of the Council4, Directive 2000/31/EC of the European Parliament and of the Council5,
Directive 2001/29/EC of the European Parliament and of the Council6, Directive
2006/115/EC of the European Parliament and of the Council7, Directive 2009/24/EC of theEuropean Parliament and of the Council8, Directive 2012/28/EU of the European Parliamentand of the Council9 and Directive 2014/26/EU of the European Parliament and of theCouncil10.

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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, in particular 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 theharmonisation 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).

Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on thelegal 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 oncollective management of copyright and related 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).

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(5)

In the fields of research, innovation, education and preservation of cultural heritage, digitaltechnologies permit new types of uses that are not clearly covered by the current 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 and 2009/24/EC in these fields may
negatively impact the functioning of the internal market. This is particularly relevant as
regards cross-border uses, which are becoming increasingly important in the digital
environment. Therefore, the existing exceptions and limitations in Union law that are
relevant for innovation, scientific research, teaching and preservation of cultural heritage
should be reassessed in the light of those new uses. Mandatory exceptions or limitations foruses of text and data mining technologies, illustration for teaching in the digital environment
and for preservation of cultural heritage should be introduced. The exceptions andlimitations existing in Union law should continue to apply, including to text and data
mining, education and preservation activities, as long as they do not limit the scope of themandatory exceptions laid down in this Directive, which need to be implemented by
Member States in their national law. Directives 96/9/EC and 2001/29/EC should be adapted.

(6)

The exceptions and limitations provided for in this Directive seek to achieve a fair balance
between the rights and interests of authors and other rightholders on the one hand, and ofusers on the other. They can be applied only in certain special cases which do not conflictwith the normal exploitation of the works or other subject-matter and do not unreasonably
prejudice the legitimate interests of the rightholders.

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(7)

The protection of technological measures established in Directive 2001/29/EC remains
essential to ensure the protection and the effective exercise of the rights granted to authors
and to other rightholders under Union law. This protection should be maintained while
ensuring that the use of technological measures does not prevent the enjoyment of the
exceptions and limitations established in this Directive. Rightholders should have theopportunity to ensure this through voluntary measures. They should remain free to choose
the appropriate means of enabling the beneficiaries of the exceptions and limitations
established in this Directive to benefit from them. In the absence of voluntary measures,
Member States should take appropriate measures in accordance with the first subparagraphof Article 6(4) of Directive 2001/29/EC, including where works and other subject-matter are
made available through on-demand services.

(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
and data mining allows the processing of large amounts of information with a view togaining new knowledge and discovering new trends. Whilst text and data mining
technologies are prevalent across the digital economy, there is widespread acknowledgmentthat text and data mining can in particular benefit the research community 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, such organisations and institutions areconfronted with legal uncertainty as to the extent to which they can perform text and data
mining of content. In certain instances, text and data mining may involve acts protected bycopyright and/or by the sui generis database right, notably the reproduction of works orother subject-matter and/or the extraction of contents from a database, which for example
happens when the data is normalised in the process of text and data mining. Where there is
no exception or limitation which applies, an authorisation to undertake such acts would be
required from rightholders.

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(8a)

Text and data mining may also be carried out in relation to mere facts or data which are notprotected by copyright and in such instances no authorisation is required under copyrightlaw. There may also be instances of text and data mining which do not involve acts ofreproduction or where the reproductions made fall under the mandatory exception for
temporary acts of reproduction laid down in Article 5(1) of Directive 2001/29/EC, whichshould continue to apply to text and data mining techniques which do not involve themaking of copies beyond the scope of that exception.

(9)

Union law provides for certain exceptions and limitations covering uses for scientificresearch purposes which may apply to acts of text and data mining. However, those
exceptions and limitations are optional and not fully adapted to the use of technologies inscientific research. Moreover, where researchers have lawful access to content, for example
through subscriptions to publications or open access licences, the terms of the licences may
exclude text and data mining. As research is increasingly carried out with the assistance ofdigital technology, there is a risk that the Union's competitive position as a research area will
suffer unless steps are taken to address the legal uncertainty for text and data mining.

(10)

This legal uncertainty should be addressed by providing for a mandatory exception for
universities and other research organisations, as well as cultural heritage institutions to the
exclusive right of reproduction and also to the right to prevent extraction from a database. Inline with the existing European research policy, which encourages universities and research
institutes to develop collaborations with the private sector, research organisations should
also benefit from the exception when their research activities are carried out in theframework of public-private partnerships. While research organisations and cultural heritage
institutions should remain the beneficiaries of the exception, they should be able to rely on
their private partners for carrying out text and data mining, including by using theirtechnological tools.

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(11)

Research organisations across the Union encompass a wide variety of entities the primary
goal of which is to conduct scientific research or to do so together with the provision of
educational services. The term "scientific research" within the meaning of this Directive
covers both the natural sciences and the human sciences. Due to the diversity of such
entities, it is important to have a common understanding of research organisations. They
should for example cover, besides universities or other higher education institutions andtheir libraries, also entities such as research institutes, hospitals carrying out research.
Despite different legal forms and structures, research organisations across the Member
States generally have in common that they act either on a not for profit basis or in thecontext of a public-interest mission recognised by the State. Such a public-interest mission
may, for example, be reflected through public funding or through provisions in national laws
or public contracts. Conversely, organisations upon which commercial undertakings have adecisive influence allowing them to exercise control because of structural situations such as
their quality of shareholders or members, which may result in preferential access to theresults of the research, should not be considered research organisations for the purposes ofthis Directive.

(11a) Cultural heritage institutions should be understood as covering publicly accessible libraries
and museums regardless of the type of works and other subject matter which they hold in
their permanent collections, as well as archives, film or audio heritage institutions. They
should include, among others, national libraries and national archives. They should also
include educational establishments, public sector broadcasting organisations and researchorganisations, as far as their archives and publicly accessible libraries are concerned.
(11b) Research organisations and cultural heritage institutions, including the persons attachedthereto, should be covered by the text and data mining exception regarding content to which
they have lawful access. Lawful access should be understood as covering access to content
based on open access policy or through contractual arrangements between rightholders andresearch organisations or cultural heritage institutions, such as subscriptions, or throughother lawful means. For instance, in cases of subscriptions taken by research organisations
or cultural heritage institutions, the persons attached thereto covered by these subscriptions
would be deemed to have lawful access. Lawful access also covers access to content that isfreely available online.

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(11c) Research organisations and cultural heritage institutions may in certain cases, for example
for subsequent verification of scientific research results, need to retain the copies madeunder the exception for the purposes of carrying out text and data mining. In such cases, thecopies should be stored in a secure environment. 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 for the purpose ofstoring such copies. In order not to unduly restrict the application of the exception, thesemodalities should be proportionate and limited to what is needed for retaining the copies in asafe manner 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
remain covered, where applicable, by the exception or limitation provided for in Article
5(3)(a) of Directive 2001/29/EC.
(12)

In view of a potentially high number of access requests to and downloads of their works orother subject-matter, rightholders should be allowed to apply measures when there is a riskthat the security and integrity of their systems or databases could be jeopardised. Suchmeasures could for example be used to ensure that only persons having lawful access to theirdata can access it, including through IP address validation or user authentication. Those
measures should remain proportionate to the risks and should not exceed what is necessary
to pursue the objective of ensuring the security and integrity of the system and should notundermine the effective application of the exception.

(13)

In view of the nature and scope of the exception, which is limited to entities carrying out
scientific research any potential harm to rightholders created through this exception should
be minimal. Therefore, Member States should not provide for compensation for rightholders
as regards uses under the text and data mining exceptions introduced by this Directive.

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(13a) In addition to their significance in the context of scientific research, text and data mining
techniques are widely used both by private and public entities to analyse large amounts ofdata in different areas of life and for various purposes, including for government services,complex business decisions and the development of new applications or technologies.
Rightholders should remain able to license the uses of their works and other subject-matter
falling outside the scope of the mandatory exception provided for in this Directive and theexisting exceptions and limitations provided for in Directive 2001/29/EC. At the same time,
consideration should be given to the fact that users of text and data mining techniques may
be faced with legal uncertainty as to whether reproductions and extractions made for the
purposes of text and data mining may be carried out on lawfully accessed works and othersubject-matter, in particular when the reproductions or extractions made for the purposes of
the technical process may not fulfil all the conditions of the existing exception for temporary
acts of reproduction in Article 5(1) of Directive 2001/29/EC.
In order to provide for more legal certainty in such cases and to encourage innovation also inthe private sector, this Directive should provide under certain conditions for an exception orlimitation for reproductions and extractions of works and other subject-matter, for the
purposes of text and data mining and allow the copies made to be kept as long as necessary
for the text and data mining purposes. This exception or limitation should only apply when
the work or other subject-matter is accessed lawfully by the beneficiary, including when it
has been made available to the public online, and insofar as the rightholders have notreserved the rights to make reproductions and extractions for text and data mining in an
appropriate manner. In the case of content that has been made publicly available online, it
should only be considered appropriate to reserve the rights by the use of machine readable
means, including metadata and terms and conditions of a website or a service. Other uses
shall not be affected by the reservation of rights for the purposes of text and data mining. In
other cases, it may be appropriate to reserve the rights by other means, such as contractual
agreements or unilateral declaration. Rightholders should be able to apply measures toensure that their reservations in this regard are respected. This 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.

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(14)

Article 5(3)(a) of Directive 2001/29/EC allows Member States to introduce an exception orlimitation to the rights of reproduction, communication to the public and making available tothe public of works and other subject matter in such a way that members of the public may
access them from a place and a time individually chosen by them ("making available to the
public"), for the sole purpose of illustration for teaching. In addition, Articles 6(2)(b) and9(b) of Directive 96/9/EC permit the use of a database and the extraction of a substantial
part of its contents for the purpose of illustration for teaching. The scope of those exceptions
or limitations as they apply to digital uses is unclear. In addition, there is a lack of clarity as
to whether those exceptions or limitations would apply where teaching is provided online
and at a distance. Moreover, the existing legal framework does not provide for a crossborder effect. This situation may hamper the development of digitally-supported teachingactivities and distance learning. Therefore, the introduction of a new mandatory exception orlimitation is necessary to ensure that educational establishments benefit from full legal
certainty when using works or other subject-matter in digital teaching activities, including
online and across borders.

(15)

While distance learning and cross-border education programmes are mostly developed at
higher education level, digital tools and resources are increasingly used at all educationlevels, in particular to improve and enrich the learning experience. The exception orlimitation provided for in this Directive should therefore benefit all educational
establishments recognised by a Member State, including in primary, secondary, vocationaland higher education. It should apply only to the extent that the uses are justified by the noncommercial purpose of the particular teaching activity. The organisational structure and themeans of funding of an educational establishment should not be the decisive factors todetermine the non-commercial nature of the activity.

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(16)

The exception or limitation for the sole purpose of illustration for teaching provided for inthis Directive should be understood as covering digital uses of works and other subjectmatter to support, enrich or complement the teaching, including learning activities. The
distribution of software allowed under the exception is limited to digital transmission ofsoftware. In most cases, the concept of illustration would therefore imply uses of parts or
extracts of works only, which should not substitute the purchase of materials primarily
intended for educational markets. When implementing the exception or limitation, Member
States should remain free to specify, for the different categories of works or other subjectmatter and in a balanced manner, the proportion of a work or other subject-matter that may
be used for the sole purpose of illustration for teaching. Uses allowed under the exception orlimitation should be understood to cover the specific accessibility needs of persons with adisability in the context of illustration for teaching.

(16a) The use of the works or other subject-matter under the 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 placeoutside the premises of educational establishments, for example in a museum, library or
another cultural heritage institution, and be limited to what is necessary for the purpose ofsuch activities. The exception or limitation should cover both uses of works and othersubject matter made in the classroom or in other venues through digital means, for example
electronic whiteboards or digital devices which may be connected to the Internet, as well as
uses made at a distance through secure electronic environments, such as online courses oraccess to teaching material complementing a given course. Secure electronic environments
should be understood as digital teaching and learning environments access to which islimited to the educational establishment's teaching staff and to the pupils or students enrolled
in a study programme, notably through appropriate authentication procedures, including
password based authentication.

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(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 order to facilitate educational uses of works and other subjectmatter. Such arrangements have usually been developed taking account of the needs ofeducational establishments and different levels of education. Whereas it is essential toharmonise the scope of the new mandatory exception or limitation in relation to digital uses
and cross-border teaching activities, the modalities of implementation may differ from a
Member State to another, to the extent they do not hamper the effective application of the
exception or limitation or cross-border uses. Member States should for example remain free
to require that the use of works and other subject matter should respect moral rights ofauthors and performers. This should allow Member States to build on the existingarrangements 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 ofadequate licences covering at least the same uses as those allowed under the exception.
Member States should ensure that where licenses cover only partially the uses allowed underthe exception, all the other uses remain subject to the exception.Member States could forexample use this mechanism to give precedence to licences for materials which are primarily
intended for the educational market or for sheet music.
In order to avoid that the possibility to subject the application of the exception to theavailability of licences results in legal uncertainty or administrative burden for educational
establishments, Member States adopting this approach should take concrete measures toensure that licensing schemes allowing digital uses of works or other subject-matter for the
purpose of illustration for teaching are easily available and that educational establishments
are aware of the existence of such licensing schemes. Such licensing schemes should meetthe needs of educational establishments. Information tools aiming at ensuring the visibilityof the existing licensing schemes could also be developed.
Such schemes could, for example, be based on collective licensing or on extended collective
licensing in order to avoid educational establishments having to negotiate individually withrightholders. In order to guarantee legal certainty, Member States should specify underwhich conditions an educational establishment may use protected works or other subjectmatter under that exception and, conversely, when it should act under a licensing scheme.

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(17a) Member States should remain free to provide that rightholders receive fair compensation forthe digital uses of their works or other subject-matter under the exception or limitation for
illustration for teaching provided for in this Directive. For the purposes of determining thepossible level of fair compensation, due account should be taken, inter alia, of Member
States' educational objectives and of the harm to rightholders. Member States deciding toprovide for fair compensation should encourage the use of systems, which do not create
administrative burden for educational establishments.
(18)

Cultural heritage institutions are engaged in the preservation of their collections for future
generations. An act of preservation of a work or other subject-matter in the collection of acultural heritage institution may require a reproduction and consequently require theauthorisation of the relevant rightholders. Digital technologies offer new ways to preserve
the heritage contained in those collections but they also create new challenges. In view ofthese new challenges, it is necessary to adapt the current legal framework by providing amandatory exception to the right of reproduction in order to allow those acts of preservation
by such institutions.

(19)

Different approaches in the Member States for acts of reproduction for preservation by
cultural heritage institutions hamper cross-border cooperation, the sharing of means ofpreservation and the establishment of cross-border preservation networks in the internalmarket by such institutions leading to an inefficient use of resources. This can have anegative impact on the preservation of cultural heritage.

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(20)

Member States should therefore be required to provide for an exception to permit cultural
heritage institutions to reproduce works and other subject-matter permanently in theircollections for preservation purposes, for example to address technological obsolescence or
the degradation of original supports or to insure works and other subject-matter. Such an
exception should allow the making of copies by the appropriate preservation tool, means or
technology, in any format or medium, in the required number and at any point in the life of awork or other subject-matter and to the extent required for preservation purposes. Acts ofreproduction undertaken by cultural heritage institutions for purposes other than thepreservation of works and other subject-matter in their permanent collections should remainsubject to the authorisation of rightholders, unless permitted by other exceptions orlimitations provided for by Union law.

(20a) Cultural heritage institutions do not necessarily have the technical means or expertise toundertake the acts required to preserve their collections themselves, particularly in thedigital environment, and may therefore have recourse to the assistance 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 their behalf andunder their responsibility, including those that are based in other Member States, for the
making of copies.
(21)

For the purposes of this Directive, works and other subject-matter should be considered tobe permanently in the collection of a cultural heritage institution when copies of such works
or other subject-matter are owned or permanently held by such institutions, for example as aresult of a transfer of ownership or licence agreements, legal deposit obligations orpermanent custody arrangements.

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(22)

Cultural heritage institutions should benefit from a clear framework for the digitisation anddissemination, including across borders, of works or other subject-matter that are consideredout of commerce for the purposes of this Directive. However, the particular characteristicsof the collections of out-of-commerce works, together with the amount of works and othersubject-matter involved in mass digitisation projects, mean that obtaining the prior consent
of the individual rightholders may be very difficult. This can be due, for example, to the ageof the works or other subject-matter, their limited commercial value or the fact that they
were never intended for commercial use or that they have never been exploitedcommercially. It is therefore necessary to provide for measures to facilitate certain uses ofout-of-commerce works and other subject-matter that are permanently in the collections ofcultural heritage institutions.

(22a) Legal mechanisms should therefore exist in all Member States allowing for licences issued
by relevant and sufficiently representative collective management organisations to cultural
heritage institutions, for certain uses of out-of-commerce works and other subject matter, toalso apply to the rights of rightholders that have not mandated a representative collective
management organisation in that regard. It should be legally possible for those licences tocover all territories of the Union.
(22b) An adapted legal framework applicable to collective licensing may not provide a solution for
all the cases where cultural heritage institutions encounter difficulties in obtaining all thenecessary authorisations of right holders for the use of out-of-commerce works and othersubject-matter, for example, because there is no practice of collective management for acertain type of works or other subject-matter or because the relevant collective management
organisation is not broadly representative for the category of the right holders and of therights concerned. In such particular instances, it should be possible for cultural heritage
institutions to make out-of-commerce works and other subject-matter that are permanently
in their collection available online in all territories of the Union under a harmonised
exception or limitation to copyright and related rights. It is important that uses under thatexception or limitation only take place when certain conditions, notably as regards theavailability of licensing solutions, are fulfilled. The lack of agreement on the conditions of
the licence should not be interpreted as a lack of availability of licensing-based solutions.

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(23)

Member States should, within the framework provided for in this Directive, have flexibility
in choosing the specific type of licensing mechanism, such as extended collective licensing
or presumptions of representation, that they put in place for the use of out-of-commerce
works and other subject matter by cultural heritage institutions, in accordance with theirlegal traditions, practices or circumstances. Member States should also have flexibility indetermining the requirements for collective management organisations to be sufficiently
representative, as long as this is based on a significant number of rightholders in the relevant
type of works or other subject-matter who have given a mandate allowing the licensing of
the relevant type of use. Member States should be free to establish specific rules applicableto cases where more than one collective management organisation is representative for the
relevant works or other subject matter, requiring for example joint licences or an agreement
between the relevant organisations.

(24)

For the purpose of those licensing mechanisms, a rigorous and well-functioning collective
management system is important. That system includes in particular rules of good
governance, transparency and reporting, as well as the regular, diligent and accurate
distribution and payment of amounts due to individual rightholders, as provided for by
Directive 2014/26/EU.

(24a) Appropriate safeguards should be available for all rightholders, who should be given theopportunity to exclude the application of the licensing mechanisms and the exception orlimitation introduced by this Directive for the use of out-of-commerce works to all theirworks or other subject-matter or in relation to all licences or all uses under the exception orlimitation, or to particular works or other subject-matter or in relation to particular licences
or uses under the exception or limitation, at any time before or under the duration of thelicence or the uses under the exception or limitation. Conditions attached to those licensing
mechanisms should not affect their practical relevance for cultural heritage institutions. It is
important that when a rightholder excludes the application of such mechanisms or of suchexception or limitation to one or more of their works or other subject-matter, any ongoinguses are terminated within a reasonable period, and, in the case they take place under acollective licence, that the informed collective management organisation does not continue
to issue licences covering the relevant uses. Such exclusion by the rightholders should notaffect their claims to remuneration for the actual use of the work or other subject-matter
under the licence.
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(24a) This Directive does not affect the possibility for Member States to determine the allocationof legal responsibility for the compliance of the licensing and the use of out-of-commerce
works with the conditions set out in this Directive and for the compliance of the parties withthe terms of those licenses.
(25)

Considering the variety of works and other subject-matter in the collections of cultural
heritage institutions, it is important that the licensing mechanisms and the exception orlimitation introduced by this Directive are available and can be used in practice for different
types of works and other subject-matter, including photographs, software, phonograms,
audiovisual works and unique works of art, irrespective of whether they have ever beencommercially available. Never-in-commerce works may include posters, leaflets, trenchjournals or amateur audiovisual works, but also unpublished works or other subject-matter,without prejudice to other applicable legal constraints, such as national rules on moral rights.
When a work is available in any of its different versions, such as subsequent editions ofliterary works and alternate cuts of cinematographic works, or in any of its different
manifestations, such as digital and printed formats of the same work, this work or othersubject-matter should not be considered out of commerce. Conversely, the commercial
availability of adaptations, including other language versions or audiovisual adaptations of aliterary work, should not preclude the determination of the out-of-commerce status of awork in a given language. In order to reflect the specificities of different types of works andother subject-matter as regards modes of publication and distribution and to facilitate theusability of those mechanisms, specific requirements and procedures may have to beestablished for the practical application of those licensing mechanisms, such as a time period
which needs to have been elapsed since the first commercial availability of the work. It isappropriate that Member States consult rightholders, cultural heritage institutions andcollective management organisations when doing so.

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(25a) When determining whether works and other subject-matter are out of commerce, areasonable effort should be required to assess their availability to the public in the customarychannels of commerce, taking into account the characteristics of the particular work or set ofworks. Member States should be free to determine the allocation of responsibilities formaking the reasonable effort. The reasonable effort should not have to be repeated over time
but it should also take account of any easily accessible evidence of upcoming availability ofworks in the customary channels of commerce. A work-by-work assessment should only berequired when this is considered reasonable in view of the availability of relevant
information, the likelihood of commercial availability and the expected transaction cost. The
verification of availability should normally take place in the Member State where thecultural heritage institution is established, unless verification across borders is consideredreasonable, for example when there is easily available information that a literary work was
first published in a given language version in another Member State. In many cases the outof-commerce status of a set of works could be determined through a proportionate
mechanism, such as sampling. The limited availability of a work, such as its availability insecond-hand shops, or the theoretical possibility to obtain a licence to a work should not be
considered as availability to the public in the customary channels of commerce.
(26)

For reasons of international comity, the licensing mechanism and the exception or limitation
provided for in this Directive for the digitisation and dissemination of out-of-commerce
works should not apply to sets of out-of-commerce works or other subject-matter when there
is available evidence to presume that they predominantly consist of works or other subjectmatter of third countries, unless the concerned collective management organisation is
sufficiently representative for that third country, for example via a representation agreement.
This assessment can be based on the evidence available following the reasonable effort todetermine the out-of-commerce status of the works, without the need to search for further
evidence. A work-by-work assessment of the origin of the out-of-commerce works should
only be required insofar as it is also required for the reasonable effort to determine theircommercial availability.

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(27)

The contracting cultural heritage institutions and collective management organisations
should remain free to agree on the territorial scope of the licence, including the possibility tocover all Member States, the licence fee and the allowed uses. Uses covered by such licenceshould not be for profit making purpose, including when copies are distributed by thecultural heritage institution, such as in the case of promotional material about an exhibition.
At the same time, as the digitisation of the collections of cultural heritage institutions canentail significant investments, any licences granted under the mechanisms provided for inthis Directive should not prevent cultural heritage institutions from covering the costs of thelicence and the costs of digitising and disseminating the works and other subject-mattercovered by the licence.

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(28)

Information regarding the future and ongoing use of out-of-commerce works and othersubject-matter by cultural heritage institutions on the basis of this Directive and thearrangements in place for all rightholders to exclude the application of licences or of the
exception or limitation to their works or other subject-matter should be adequately
publicised both before and during the use under a licence or the exception or limitation, as
appropriate. This is particularly important when uses take place across borders in theinternal market. It is therefore appropriate to make provision for the creation of a single
publicly accessible online portal for the Union to make such information available to the
public for a reasonable period of time before the use takes place. This portal should facilitate
the possibility for rightholders to exclude the application of licences to their works or othersubject-matter. Under Regulation (EU) No 386/2012 of the European Parliament and of theCouncil11, the European Union Intellectual Property Office is entrusted with certain tasks
and activities, financed by making use of its own budgetary means, aiming at facilitating andsupporting the activities of national authorities, the private sector and Union institutions in
the fight against, including the prevention of, infringement of intellectual property rights. It
is therefore appropriate to rely on that Office to establish and manage the European portal
making such information available. In addition to making the information available throughthe portal, further appropriate publicity measures may need to be taken on a case-by-casebasis in order to increase the awareness of affected rightholders, for example through the useof additional channels of communication to reach a wider public. The necessity, the natureand the geographic scope of the additional publicity measures should depend on thecharacteristics of the relevant out-of-commerce works or other subject-matter, the terms of
the licences or the type of use under the exception or limitation, and the existing practices inMember States. Publicity measures should be effective without the need to inform eachrightholder individually.

11

Regulation (EU) No 386/2012 of the European Parliament and of the Council of 19 April 2012 on
entrusting the Office for Harmonization in the Internal 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).

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(-28a) In order to ensure that the licensing mechanisms established by this Directive for out-ofcommerce works are relevant and function properly, that rightholders are adequately
protected, that licences are properly publicised and that legal clarity is ensured with regard
to the representativeness of collective management organisations and the categorisation ofworks, Member States should foster sector-specific stakeholder dialogue.
(28a) The measures provided for in this Directive to facilitate the collective licensing of rights inout-of-commerce works or other subject-matter that are permanently in the collections ofcultural heritage institutions should be without prejudice to the use of such works or othersubject-matter under exceptions or limitations provided for in Union law or under otherlicences with an extended effect, where such licensing is not based on the out-of-commerce
status of the covered works or other subject matter. These measures should also be without
prejudice to national mechanisms for the use of out of commerce works based on licences
between collective management organisation and users other than cultural heritage
institutions.
(28b) Mechanisms of collective licensing with an extended effect allow a collective management
organisation to offer licences as a collective licensing body on behalf of rightholders
irrespective of whether they have authorised the organisation to do so. Systems built on suchmechanisms, such as extended collective licensing, legal mandates or presumptions ofrepresentation, are a well-established practice in several Member States and may be used indifferent areas. A functioning copyright framework that works for all parties requires theavailability of proportionate, legal mechanisms for the licensing of works. Member Statesshould therefore be able to rely on solutions, allowing collective management organisations
to offer licences covering potentially large volumes of works or other subject-matter forcertain types of use, and distribute the revenue received to rightholders, in accordance with
Directive 2014/26/EU.

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(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 to enable the use of these works or other subject matter are
unlikely to take place. Extended collective licensing by collective management organisations
and similar mechanisms may make it possible to conclude agreements in these areas wherecollective 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
complement collective management based on individual authorisation by rightholders, byproviding full legal certainty to users in certain cases. At the same time, they provide an
opportunity to rightholders 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 increasing use of such schemes, Member States should be able toprovide for licensing mechanisms which permit collective management organisations toconclude licences, on a voluntary basis, irrespective of whether all rightholders haveauthorised the organisation to do so. Member States should have the ability to maintain andintroduce such schemes in accordance with their national traditions, practices or
circumstances, subject to the safeguards provided for in this Directive and in full respect ofUnion law and the international obligations of the Union. These schemes would only haveeffect in the territory of the Member State concerned, unless otherwise provided for inUnion law. Member States should have flexibility in choosing the specific type of
mechanism allowing licences for works or other subject-matter to extend to the rights ofrightholders that have not authorised the organisation that concludes the agreement,
provided that this is in compliance with Union law, including the rules on collective rights
management provided in Directive 2014/26/EU. In particular, such schemes should also
ensure that Article 7 of Directive 2014/26/EU applies to rightholders that are not membersof the organisation that concludes the agreement. Such mechanisms may include extended
collective licensing, legal mandate and presumptions of representation. The provisions of
this Directive concerning collective licensing should not affect existing possibilities ofMember States to apply mandatory collective management or other collective licensing
mechanisms with an extended effect, such as the one included in Article 3 of Directive
93/83/EEC.

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(28e) It is important that such mechanisms are only applied in well-defined areas of uses, whereobtaining authorisations from rightholders on an individual basis is typically onerous andimpractical to a degree that makes the required licensing transaction, i.e. a licence thatcovers all the involved rightholders unlikely to occur due to the nature of the use or of thetypes of works concerned. Such mechanisms should be based on objective, transparent andnon-discriminatory criteria as regards the treatment of rightholders including non-members.
In particular the mere fact that the affected rightholders are not nationals or residents of or
established in the Member State of the user who is seeking a licence, should not be on its
own merits a reason to consider the clearance of rights so onerous and impractical to justify
the use of such mechanisms. It is equally important that the licensed use neither affects
adversely the economic value of the relevant rights nor deprives rightholders of significant
commercial benefits. Moreover, Member States should ensure that appropriate safeguards
are in place to protect the legitimate interests of rightholders that are not represented by theorganisation offering the licence that apply in a non-discriminatory manner.

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(28f) Specifically, to justify the extended effect of the mechanisms, the organisation should be, on
the basis of authorisations from rightholders, sufficiently representative of the types ofworks or other subject-matter and of the rights which are the subject of the licence. Member
States should determine the requirements for those organisations to be sufficiently
representative taking into account the category of rights managed by the collective rights
management organisation, the ability of the organisation to manage the rights effectively andthe creative sector in which it operates and also whether the organisation covers a significant
number of rightholders in the relevant type of works or other subject-matter who have given
a mandate allowing the licensing of the relevant type of use, and in accordance with
Directive 2014/26/EU. To ensure legal certainty and confidence in the mechanisms Member
States may determine the allocation of legal responsibility for uses authorised by the licenceagreement. Equal treatment should be guaranteed to all rightholders whose works are
exploited under the licence including in particular as regards access to information on thelicensing and the distribution of remuneration. Publicity measures should be effective
throughout the duration of the licence without imposing disproportionate administrative
burdens on users, collective management organisations and rightholders and without theneed to inform each rightholder individually. In order to ensure that rightholders can easily
regain control 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 theapplication of such mechanisms to their works or other subject-matter for all uses and works
or other subject-matter, or for specific uses and works or other subject-matter, including
before the conclusion of a licence and during the term of the licence. In such cases, any
ongoing uses should be terminated within a reasonable period. Such exclusion by therightholders should not affect their claims to receive remuneration for the actual use of thework or other subject-matter under the licence. Member States may also decide 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 the Union to raise awareness about these mechanisms and therightholders' possibility to exclude their works or other subject-matter from them.

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(28g) Member States should ensure that the purpose and scope of any licence granted as a result of
these mechanisms, as well as the possible uses, should always be carefully and clearly
defined in legislation or, if the underlying legislation is a general provision, in the licensing
practices applied as a result of such general provisions, or in the licences granted. The ability
to operate a licence under these mechanisms should also be limited to collective rights
management organisations which are subject to national law implementing Directive
2014/26/EU.
(28h) Given the different traditions and experiences with extended collective licensing acrossMember States and their applicability to rightholders irrespective of their nationality or their
Member State of residence, it is important to ensure transparency and dialogue at Unionlevel about the practical functioning of these mechanisms, including as regards theeffectiveness of safeguards for rightholders, their usability, the effect on rightsholders who
are not members and/or who are nationals of, or resident in, another Member State, theimpact on the cross border provision of services, including the potential need to lay down
rules to give such schemes cross-border effect within the internal market. To ensuretransparency, information about the use of such mechanisms under this Directive should be
regularly published by the Commission. Member States that have introduced suchmechanisms should therefore inform the Commission about relevant national legislation andits application in practice, including scopes and types of licensing introduced on the basis ofgeneral legislation, the scale of licensing and the collective management organisations
involved. Such information should be discussed with Member States in the contact
committee referred to in Article 12(3) of Directive 2001/29/EC. The Commission should
publish a report by 10 April 2021 on the use of such mechanisms in the Union and theirimpact on licensing and rightholders, on the dissemination of cultural content and on the
cross-border provision of services in the area of collective management of copyright andrelated rights, and competition.

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(29)

Video-on-demand services have the potential to play a decisive role in the dissemination ofaudiovisual works across the European Union. However, the availability of those works, inparticular European works, on video-on-demand services remains limited. Agreements on
the online exploitation of such works may be difficult to conclude due to issues related to
the licensing of rights. Such issues may, for instance, appear when the holder of the rights
for a given territory has low economic incentive to exploit a work online and does notlicense or holds back the online rights, which can lead to the unavailability of audiovisual
works on video-on-demand services. Other issues may be linked to the windows of
exploitation.

(30)

To facilitate the licensing of rights in audiovisual works to video-on-demand services, thisDirective requires Member States to provide for a negotiation mechanism allowing parties
willing to conclude an agreement to rely on the assistance of an impartial body or of one ormore mediators. For that purpose, Member States may either create a new body or rely on an
existing one that fulfils the conditions established by this Directive. Member States may
designate one or more competent bodies or mediators. The body or the mediators shouldmeet with the parties and help with the negotiations by providing professional, impartial andexternal advice. Where a negotiation involves parties from different Member States, thoseparties should agree beforehand on the competent Member State, should they decide to relyon the negotiation mechanism. The body or the mediators could meet with the parties tofacilitate the start of negotiations or in the course of the negotiations to facilitate theconclusion of an agreement. The participation in this negotiation mechanism and thesubsequent conclusion of agreements should be voluntary and should not affect the parties'
contractual freedom. Against that background, Member States should be free to decide on
the concrete functioning of the negotiation mechanism, including the timing and duration of
the assistance to negotiations and the bearing of the costs. Member States should ensure thatadministrative and financial burdens remain proportionate to guarantee the efficiency of thenegotiation mechanism. Member States should encourage dialogue between representative
organisations, without it being an obligation for Member States.

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(30a) The expiry of the term of protection of a work entails the entry of that work in the publicdomain and the expiry of the rights that Union copyright law provides to that work. In thefield of visual arts, the circulation of faithful reproductions of works in the public domain
contributes to the access to and promotion of culture (or access to cultural heritage). In thedigital environment, the protection of these reproductions through copyright or related rights
is inconsistent with the expiry of the copyright protection of works. In addition, differences
between the national copyright laws governing the protection of these reproductions giverise to legal uncertainty and affect the cross-border dissemination of works of visual arts inthe public domain. Therefore, it should be clarified that certain reproductions of works ofvisual arts in the public domain should not be protected by copyright or related rights. Thisshould not prevent cultural heritage institutions from selling reproductions, such as
postcards.
(31)

A free and pluralist press is essential to ensure quality journalism and citizens' access to
information. It provides a fundamental contribution to public debate and the proper
functioning of a democratic society. The wide availability of press publications online has
given rise to the emergence of new online services, such as news aggregators or media
monitoring services, for which the reuse of press publications constitutes an important partof their business models and a source of revenues. Publishers of press publications arefacing problems in licensing the online use of their publications to the providers of thesekind of services, making it more difficult for them to recoup their investments. In theabsence of recognition of publishers of press publications as rightholders, licensing andenforcement of rights in press publications regarding online uses by information society
service providers in the digital environment are often complex and inefficient.

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(32)

The organisational and financial contribution of publishers in producing press publications
needs to be recognised and further encouraged to ensure the sustainability of the publishingindustry and thereby to foster the availability of reliable information. It is therefore
necessary to provide at Union level a harmonised legal protection for press publications in
respect of online uses by information society service providers, leaving unaffected current
copyright rules in Union 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 the introduction, in Union law, of rights
related to copyright for the reproduction and making available to the public of press
publications published by publishers established in a Member State in respect of online uses
by information society service providers within the meaning of Directive (EU) 2015/1535 of
the European Parliament and of the Council 12. The legal protection for press publications
provided for by this Directive should benefit publishers established in a Member State andhaving their registered office, central administration or principal place of business within theUnion.
The concept of publisher of press publications should be understood as covering service
providers, such as news publishers or news agencies, when they publish press publications
within the meaning of this Directive.

12

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).

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(33)

For the purposes of this Directive, it is necessary to define the concept of press publications
so that it only covers journalistic publications, published in any media, including on paper,in the context of an economic activity which constitutes a provision of 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 basedmagazines, and news websites. Press publications contain mostly literary works but
increasingly include other types of works and subject-matter, notably photographs andvideos. Periodical publications published for scientific or academic purposes, such as
scientific journals, should not be covered by the protection granted to press publications
under this Directive. Neither should this protection apply to websites, such as blogs, thatprovide information as part of an activity which is not carried out under the initiative,
editorial responsibility and control of service provider, such as a news publisher.

(34)

The rights granted to the publishers of press publications under this Directive should havethe same scope as the rights of reproduction and making available to the public provided forin Directive 2001/29/EC, insofar as online uses by information society service providers areconcerned. The rights granted to the publishers of press publications should not extend toacts of hyperlinking. They should also not extend to the mere facts reported in the press
publications. They should also be subject to the same provisions 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 or review laid down in Article
5(3)(d) of that Directive.

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(34a) Uses of press publications by information society service providers can consist of the use ofentire publications or articles but also of parts of press publications. Such uses of parts ofpress publications have also gained economic relevance. At the same time, the use ofindividual words or very short extracts of press publications by information society service
providers may not undermine the investments made by publishers of press publications in
the production of content. Therefore, it is appropriate to provide that the use of individual
words or very short extracts of press publications should not fall within the scope of therights provided for in this Directive. Taking into account the massive aggregation and use ofpress publications by information society service providers, it is important that the exclusionof very short extracts should be interpreted in such a way as not to affect the effectiveness of
the rights provided for in this Directive.
(35)

The protection granted to publishers of press publications under this Directive should notaffect the rights of the authors and other rightholders in the works and other subject-matterincorporated therein, including as regards the extent to which authors and other rightholders
can exploit their works or other subject-matter independently from the press publication inwhich they are incorporated. Therefore, publishers of press publications should not be able
to invoke the protection granted to them against authors and other rightholders or against
other authorised users of the same works and other subject-matter. This is without prejudice
to contractual arrangements concluded between the publishers of press publications, on the
one side, and authors and other rightholders, on the other side.
Authors whose works are incorporated in a press publication should be entitled to an
appropriate share of the revenues press publishers receive for the uses of their press
publications by information society service providers.
This is without prejudice to Member States’ laws on ownership or exercise of rights in thecontext of employment contracts, provided that they are compliant with Union law.

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(36)

Publishers, including those of press publications, books or scientific publications and music
publications, often operate on the basis of the transfer of authors' rights by means ofcontractual agreements or statutory provisions. In this context, publishers make an
investment with a view to the exploitation of the works contained in their publications andmay in some instances be deprived of revenues where such works are used under exceptions
or limitations, such as the ones for private copying and reprography, including thecorresponding existing national schemes for reprography in the Member States, or underpublic lending schemes.
In several Member States compensation for uses under those exceptions is shared between
authors and publishers. In order to take account of this situation and to improve legal
certainty for all concerned parties, this Directive allows Member States that have in place
existing schemes for the sharing of compensation between authors and publishers tomaintain them.
This is particularly important to those Member States that had such compensation-sharing
mechanisms before 12 November 2015 although in other Member States, compensation is
not shared and solely due to authors in accordance with national cultural policies. While thisDirective should apply in a non-discriminatory way to all Member States, it should respect
the traditions in this area and not oblige those Member States that do not currently have suchcompensation-sharing schemes to introduce them. It should not affect existing and futurearrangements in Member States regarding remuneration in the context of public lending. It
should also leave untouched national arrangements related to the management of rights andto remuneration rights, provided that they comply with Union law.
All Member States should be allowed but not obliged 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 the harm caused to them by an
exception or limitation, including through collective management organisations that jointly
represent authors and publishers, publishers are entitled to a share of such compensation.

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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 thesharing of this compensation or remuneration between authors and publishers in accordancewith their national systems.
(37)

Over the last years, the functioning of the online content market has gained in complexity.
Online content sharing services providing access to a large amount of copyright protected
content uploaded by their users have become main sources of access to content online.
Online services are means of providing wider access to cultural and creative works and offer
great opportunities for cultural and creative industries to develop new business models.
However, although they 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 to whether such services engage in copyright relevant acts andneed to obtain authorisations from rightholders for the content uploaded by their users who
do not hold the relevant rights in the uploaded content, without prejudice to the applicationof exceptions and limitations provided for in Union Law. This uncertainty affects
rightholders' possibilities to determine whether, and under which conditions, their works andother subject-matter are used as well as their possibilities to get an appropriate remuneration
for it.
It is therefore important to foster the development of the licensing market between
rightholders and online content sharing service providers. These licensing agreements
should be fair and keep a reasonable balance for both parties. Rightholders should receive anappropriate reward for the use of their works or other subject matter.
However, as contractual freedom is not affected by these provisions, the right holders should
not be obliged to give an authorisation or to conclude licensing agreements.

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(37a) Certain information society services, as part of their normal use, are designed to give accessto the public to copyright protected content or other subject-matter uploaded by their user.
The definition of an online content sharing service under this Directive should target only
online services which play an important role on the online content market by competingwith other online content services, such as online audio and video streaming services, for thesame audiences. The services covered by this Directive are those services, the main or oneof the main purposes of which is to store and enable users to upload and share a large
amount of copyright protected content with the purpose of obtaining profit therefrom, either
directly or indirectly, by organising it and promoting it in order to attract a larger audience,
including by categorising it and using targeted promotion within it. The definition does notinclude services which have another main purpose than enabling users to upload and share alarge amount of copyright protected content with the purpose of obtaining profit from thisactivity. These include, for instance, electronic communication services within the meaningof Directive 2018/1972 establishing the European Electronic Communications Code, as wellas providers of business to-business cloud services and cloud services, which allow users to
upload content for their own use, such as cyberlockers, or online marketplaces whose main
activity is online retail and not giving access to copyright protected content. Providers ofservices such as open source software development and sharing platforms, not for profit
scientific or educational repositories as well as not-for-profit online encyclopedias are also
excluded from this definition.
Finally, in order to ensure a high level of copyright protection, the liability exemption
mechanism provided for in Article 13 should not apply to service providers the main
purpose of which is to engage in or to facilitate copyright piracy.
(37b) The assessment of whether an online content sharing service provider stores and gives
access to a large amount of copyright-protected content needs to be made on a case-by-casebasis and take account of a combination of elements, such as the audience of the service andthe number of files of copyright-protected content uploaded by the users of the services.

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(38)

This Directive clarifies that online content sharing service providers engage in an act ofcommunication 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 theirusers. Consequently, the online content sharing service providers should obtain an
authorisation, including via a licencing agreement, from the relevant rightholders. This does
not affect the concept of communication to the public or of making available to the publicelsewhere under Union law nor does it affect the possible application of Article 3(1) and (2)of Directive 2001/29/EC to other service providers using copyright-protected content13.

(38a) When online content sharing service providers are liable for acts of communication to the
public or making available to the public under the conditions established under thisDirective, Article 14(1) of Directive 2000/31/EC should not apply to the liability arisingfrom Article 13 of this Directive. This should not affect the application of Article 14(1) of
Directive 2000/31/EC to these service providers for purposes falling outside the scope of
this Directive.
(38b) Taking into account the fact that online content sharing service providers give access tocontent which is not uploaded by them but by their users, it is appropriate to provide for a
specific liability mechanism for the purposes of this Directive for cases where no
authorisation has been granted. This should be without prejudice to remedies under nationallaw for cases other than liability for copyright infringements and to the possibility fornational courts or administrative authorities of issuing injunctions in compliance 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 number ofmonthly unique visitors in the Union does not exceed 5 million should not affect theavailability of remedies under national law and EU law.

13

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

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Where no authorisation has been granted to the services providers, they should make theirbest efforts in accordance with high industry standards of professional diligence to avoid theavailability on their services of unauthorised works and other subject matter, as identified by
the relevant rightholders. For that purpose rightholders should provide the service providers
with necessary and relevant information taking into account, among other factors, the size ofrightholders and the type of their works and other subject matter. The steps taken by the
online content sharing service providers in cooperation with rightholders should not lead tothe prevention of the availability of non-infringing content, including the use of works orother protected subject matter covered by a licencing agreement, exception or limitation tocopyright. Thereby it should not affect users who are using the online content sharing
providers’ services in order to lawfully upload and access information on these services.
The obligations established in Article 13 should also not lead to Member States imposing ageneral monitoring obligation.
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 be takenof whether the service provider has taken all the steps that would be taken by a diligent
operator to achieve the result of preventing the availability of unauthorised works or othersubject matter on its website, taking into account best industry practices and theeffectiveness of the steps taken in light of all relevant factors and developments, as well as
the principle of proportionality. For the purposes of this assessment, a number of elements
should be considered, such as the size of the service, the evolving state of the art of existingmeans, including future developments, for avoiding the availability of different types ofcontent and their cost for the services. Different means to avoid the availability ofunauthorised copyright protected content may be appropriate and proportionate per type ofcontent and it is therefore not excluded that in some cases unauthorised content may only be
avoided upon notification of rightholders.

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Any steps taken by the service providers should be effective with regard to the objectives
sought but should not go beyond what is necessary to achieve the objective of avoiding anddiscontinuing the availability of unauthorised works and other subject matter.
If unauthorised works and other subject matter become available despite the best efforts
made in cooperation with rightholders as required by this Directive, the online content
sharing service providers should be liable in relation to the specific works and other subject
matter for which they have received the relevant and necessary information fromrightholders, unless they demonstrate that they have made their best efforts pursuant to highindustry standards of professional diligence.
In addition, where specific unauthorised works or other subject matter have become
available on the services, including irrespective of whether the best efforts were made andregardless of whether right holders have made available the necessary information inadvance, the online content sharing service providers should be liable for unauthorised actsof communication to the public of works and other subject matter, when upon receiving asufficiently substantiated notice, they fail to act expeditiously to remove from their websites
or disable access to the notified works and subject matter. Additionally, these services
should also be liable if they fail to demonstrate that they have made their best efforts toprevent the future uploads of specific unauthorised works, based on relevant and necessary
information provided by rightholders for that purpose.
When rightholders do not provide the service providers, with the necessary and relevant
information on their specific works and other subject matter or when no notification
concerning the removal or disabling access to specific unauthorised works or other subject
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 ofunauthorised content in accordance with the high standard of professional diligence, theservice providers should not be liable for unauthorised acts of communication to the public
or of making available to the public of these unidentified works and other subject matter.

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(38ba) 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 on collective management of copyrightand related rights and multi-territorial licensing of rights in musical works for online use in
the internal market. The rules set in this Directive are intended to take into account the
specific case of start-up companies working with user uploads to develop new businessmodels.
The modified regime applicable to new service providers with a small turnover and audienceshould benefit genuine new enterprises 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 benefit of this modified regime beyond the first three years. In
particular, it should not apply to services newly created or to services provided under a newname but which are pursuing the activity of an already existing online content sharing
service provider which could not or does not longer benefit from this regime.
(38c) The online content sharing service providers should be transparent towards rightholders withregard to the steps taken in the context of the cooperation. As different actions may beundertaken by the online content sharing service providers, they should provide rightholders,at their request, with adequate information on the type of actions undertaken and the way
they are implemented. Such information should be sufficiently specific to provide enoughtransparency to rightholders, without prejudice to the business secrets of online content
sharing service providers. Service providers should however not be required to provide
rightholders with detailed and individualised information for each work and other subject
matter identified. This is without prejudice to contractual arrangements, which may containmore specific provisions on the information to be provided where agreements are concluded
between service providers and rightholders.

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(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 the service, theseshould also cover the copyright relevant acts in respect of uploads by the users within thescope of the authorisation granted to the service providers, but only in cases where the users
act for non-commercial purposes, such as sharing their content without any profit making
purpose, or when the revenue generated by their uploads are not significant in relation to the
copyright relevant act of the users for which they are covered.
When rightholders have explicitly authorised users to upload and make available works orother subject-matter on an online content sharing service, the act of communication to the
public of the service is authorised within the scope of the authorisation granted by therightholder. However, there should be no presumption in favour of the online content
sharing service providers that their users have cleared all the relevant rights.
(39a) The steps taken by the online content sharing service providers should be without prejudice tothe application of exceptions and limitations to copyright, including in particular thosewhich guarantee the freedom of expression of users.
Users should be allowed to upload and make available content generated by users for
specific purposes of quotation, criticism, review, caricature, parody or pastiche. This isparticularly important to strike a balance between fundamental rights in the Charter ofFundamental Rights of the European Union, in particular the freedom of expression and thefreedom of the arts, and the right to property, including intellectual property. For thesereasons, these exceptions should be made mandatory in order to ensure that users receive
uniform protection across the Union. It is important to ensure that online content sharing
services operate an effective complaint and redress mechanism to support these uses.

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The online content sharing service providers should also put in place effective andexpeditious complaint and redress 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 in relation to an upload that is removed or to which access is
disabled. Any complaint filed under such mechanisms should be processed without undue
delay and be subject to a decision by a human. When rightholders request the services totake 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 and Regulation (EU)2016/67915, the cooperation should not lead toany identification of individual users nor the processing of their personal data.
Member States should also ensure that users have access to out-of-court redress mechanisms
for the settlement of disputes. Such mechanisms should allow disputes to be settled
impartially. Users should also have access to a court or another relevant judicial authority toassert the use of an exception or limitation to copyright rules.
(39b) As soon as possible after the entry into force of this Directive, the Commission, in
collaboration with Member States, should organise dialogues between stakeholders to arrive
to a uniform application of the obligation of cooperation and to define best practices withregard 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 developments on the market. Userorganisations should also have access to information on actions carried out by online content
sharing service providers to manage content online.

14

15

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning theprocessing 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 theprotection of natural persons with regard to the processing of personal data and on the free movementof such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119,4.5.2016, p. 1–88.

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(39x)* Authors and performers tend to be in a weaker contractual position when they grant a licenceor transfer their rights, including through their own companies, for the purposes of
exploitation in return for remuneration, and these natural persons need the protection
provided for by this Directive to be able to fully benefit from their rights which areharmonised 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 the case in some employment contracts.
*[Note to lawyer linguists; recital (39x) is a new, introductory recital to the whole chapter 3
on fair remuneration to clarify that the provisions apply to "exploitation contracts". The
proposed text is based on recitals 40 and 40a – the repetitions can be deleted from recitals
40 and 40a.](39y) The remuneration of authors and performers should be appropriate and proportionate to theactual or potential economic value of the licensed or transferred rights, taking into accountthe author’s or performer’s contribution to the overall work or other subject-matter and allother circumstances of the case, such as market practices or the actual exploitation of thework.
A lump sum payment can also constitute proportionate remuneration but it should not be therule. Member States should have the possibility, taking into account the specificities of eachsector, to define specific cases for the application of lump sums.
Members States should be free to implement the principle of appropriate and proportionate
remuneration through different existing or newly-introduced mechanisms, which may
include collective bargaining and other mechanisms, provided that such mechanisms are inconformity with applicable Union law.

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(40)

Authors and performers need information to assess the economic value of their rights which
are harmonised under Union law. This is especially the case where natural persons grant alicence or transfer rights for the purposes of exploitation in return for remuneration. This
need does not arise when the contractual counterpart acts as end and does not exploit thework or performance itself, which could among others be the case in 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.

(40a) As authors and performers tend to be in a weaker contractual position when they grant
licences or transfer their rights, they need information to assess the continued economic
value of their rights, compared to the remuneration received for their licence or transfer, butthey often face a lack of transparency. Therefore, the sharing of adequate and accurate
information by their contractual counterparts or their successors in title is important for thetransparency and balance in the system that governs the remuneration of authors andperformers. The information should be: up-to-date to allow access to recent data; relevant to
the exploitation of the work or performance; and comprehensive to cover all sources ofrevenues relevant to the case, including, where applicable, merchandising revenues. As longas exploitation is ongoing, contractual counterparts of authors and performers should
provide information available to them on all modes of exploitation and on all relevant
revenues worldwide with a regularity which is appropriate in the relevant sector, but at least
annually. The information should be provided in a manner that is comprehensible to theauthor or performer and it should allow the effective assessment of the economic value ofthe rights in question. The transparency obligation should nevertheless apply only where
copyright relevant rights are concerned. The processing of personal data, such as contact
details and information on remuneration, that are necessary to keep authors and performers
informed on the exploitation of their works and performances should be carried out by those
who need to comply with the transparency obligation on the basis of Article 6(1)(c) ofRegulation (EU) 2016/679 on the protection of natural persons with regard to the processingof personal data and the free movement of such data (General Data Protection Regulation).

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(40b) In order to ensure that exploitation-related information is duly provided to authors andperformers also in cases where the rights have been sublicensed to other parties who exploit
the rights, this Directive entitles authors and performers, in cases where the first contractual
counterpart has provided the information available to them but the received information is
not sufficient to assess the economic value of their rights, to request additional relevant
information on the exploitation of the rights. This can be ensured either directly from sublicensees or through the contractual counterparts of authors and performers. Authors andperformers and their contractual counterparts may agree to keep the shared information
confidential, but authors and performers should always have the possibility to use the shared
information for exercising their rights under in this Directive. Member States should havethe option, in compliance with Union law, to provide for further measures through national
provisions to ensure transparency for authors and performers.
(41)

When implementing transparency obligations, Member States should take into account the
specificities of different content sectors, such as those of the music sector, the audiovisual
sector and the publishing sector and all relevant stakeholders should be involved when
determining such sector-specific requirements. Where relevant, the significance of thecontribution 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 transparency which should ensure authors andperformers the same or higher level of transparency as the minimum requirements provided
for in this Directive. To enable the adaptation of current reporting practices to thetransparency obligations, a transitional period should be provided for. The transparency
obligations do not need to apply in respect of agreements concluded between rightholders
and collective management organisations, independent management entities or other entities
subject to the national rules implementing Directive 2014/26/EU as those organisations or
entities are already subject to transparency obligations under Article 18 of Directive
2014/26/EU. Article 18 of Directive 2014/26/EU applies to organisations which manage
copyright or related rights on behalf of more than one rightholder for the collective benefitof those rightholders. However, individually negotiated agreements concluded between
rightholders and their contractual partners who act in their own interest and should be
subject to the transparency obligation provided for in this Directive.

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(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 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, a remuneration adjustment mechanism
should be provided for cases where the remuneration originally agreed under a licence or atransfer of rights clearly becomes disproportionately low compared to the relevant revenues
derived from the subsequent exploitation of the work or fixation of the performance by thecontractual counterpart of the author or performer. The revenues which should be taken into
account for the assessment of the disproportion are all revenues relevant to the case,including, where applicable, merchandising revenues. The assessment of the situation shouldtake account of the specific circumstances of each case, including the contribution of theauthor or performer, as well as of the specificities and remuneration practices of the different
content sectors, and whether the contract is based on a collective bargaining agreement.
Representatives of authors and performers duly mandated in accordance with national law,in compliance with Unions law, should have the possibility to provide assistance to one ormore authors or performers in requesting the adjustment of the contracts, also taking into
account the interests of other authors or performers when relevant. Those representatives
should protect the identity of the represented authors and performers 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 to 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 other entities subject to the national rules
implementing Directive 2014/26/UE.

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(43)

Authors and performers are often reluctant to enforce their rights against their contractual
partners before a court or tribunal. Member States should therefore provide for an alternative
dispute resolution procedure that addresses claims by authors and performers or theirrepresentatives on their behalf related to obligations of transparency and the contract
adjustment mechanism. For that purpose, Member States may either create a new body ormechanism or rely on an existing one that fulfils the conditions established by this Directive
irrespective of whether these are industry-led or public, including when incorporated in thenational judiciary system. Member States should have flexibility in deciding how the costsof the dispute resolution procedure should be allocated. This alternative dispute resolution
procedure should be without prejudice to the right of parties to assert and defend their rights
by bringing an action before a court.

(43a1) When authors and performers license or transfer their rights, they expect their work or
performance to be exploited. However, it happens that works or performances that havebeen licensed or transferred are not exploited at all. When these rights have been transferredon an exclusive basis, authors and performers cannot turn to another partner to exploit theirwork. In such a case, and after a reasonable period of time has elapsed, authors andperformers should be able to benefit from a mechanism for the revocation of rights allowing
them to transfer or license their rights to another person. As exploitation of works can varydepending on the sectors, specific provisions could be taken at national level in order to take
into account the specificities of the sectors, such as the audio-visual sector, or of the works,
notably providing for time frames for the right of revocation. In order to protect thelegitimate interests of licensees and transferees of rights and to prevent abuses, and taking
into account that a certain amount of time is needed before a work is actually exploited,authors and performers should be able to exercise the right of revocation in accordance withcertain procedural requirements and only after a certain period of time following theconclusion of the license or of the transfer agreement. National law should regulate theexercise of the right of revocation in the case of works involving a plurality of authors or
performers, taking into account the relative importance of the individual contributions.

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(43a2) The obligations laid down in Articles 14, 15 and 16 of 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 theircontractual counterparts or in agreements between those counterparts and third parties suchas non-disclosure agreements. As a consequence, the rules set out in Article 3(4) of theRegulation (EC) No 593/2008 of the European Parliament and of the Council14 should apply
to the effect that where all other elements relevant to the situation at the time of the choice
are located in one or more Member States, the parties’ choice of applicable law other thanthat of a Member State shall not prejudice the application of Articles 14, 15 and 16, as
implemented in the Member State of the forum.
(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 subject-matterfor free, including through non-exclusive free licences for the benefit of any users.
(44)

The objectives of this Directive, namely the modernisation of certain aspects of the Union
copyright framework to take account of technological developments and new channels of
distribution of protected content in the internal market, cannot be sufficiently achieved by
Member States but can rather, by reason of their scale, effects and cross-border dimension,
be better achieved at Union level. Therefore, the Union may adopt measures in accordancewith the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In
accordance with the principle of proportionality, as set out in that Article, this Directive does
not go beyond what is necessary in order to achieve those objectives.

(45)

This Directive respects the fundamental rights and observes the principles recognised inparticular by the Charter of Fundamental Rights of the European Union. Accordingly, thisDirective should be interpreted and applied in accordance with those rights and principles.

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(46)

Any processing of personal data under this Directive should respect fundamental rights,
including the right to respect for private and family life and the right to protection of
personal data under Articles 7 and 8 of the Charter of Fundamental Rights of the European
Union and must be in compliance with Regulation (EU) 2016/679 of the European
Parliament and of the Council and Directive 2002/58/EC of the European Parliament and of
the Council16.

(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, the notification of their transposition measures with one ormore documents explaining the relationship between the components of a directive and thecorresponding parts of national transposition instruments. With regard to this Directive, thelegislator considers the transmission of such documents to be justified,

HAVE ADOPTED THIS DIRECTIVE

16

17

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), called, as amended by Directives 2006/24/EC and 2009/136/EC, the “ePrivacy Directive”.
OJ C 369, 17.12.2011, p. 14.

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TITLE I
GENERAL PROVISIONS
Article 1
Subject matter and scope

1.

This Directive lays down rules which aim at further harmonising the Union law applicable tocopyright and related rights in the framework of the internal market, taking into account inparticular digital and cross-border uses of protected content. It also lays down rules on
exceptions and limitations, on the facilitation of licences as well as rules aiming at ensuring awell-functioning marketplace for the exploitation of works and other subject-matter.

2.

Except in the cases referred to in Article 17, this Directive shall leave intact and shall in no
way affect existing rules laid down in the Directives currently in force 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.

Article 2
Definitions

For the purposes of this Directive, the following definitions shall apply:(1)‘research organisation’ means a university, including its libraries, a research institute or any
other entity the primary goal of which is to conduct scientific research or to carry out
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(b)

pursuant to a public interest mission recognised by a Member State;in such a way that the access to the results generated by the scientific research cannot beenjoyed on a preferential basis by an undertaking exercising a decisive influence upon suchorganisation;(2)‘text and data mining’ means any automated analytical technique aiming to analyse text anddata in digital form in order to generate information, including, but not limited to, patterns,
trends and correlations;(3)‘cultural heritage institution’ means a publicly accessible library or museum, an archive or afilm or audio heritage institution;(4)‘press publication’ means a collection composed mainly of literary works of a journalistic
nature which:(a)

may also include other works or subject matter;(b)

constitutes an individual item within a periodical or regularly updated publication undera single title, such as a newspaper or a general or special interest magazine;(c)has the purpose of providing the general public with information related to news orother topics; and(d)is published in any media under the initiative, editorial responsibility and control of aservice provider.

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

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(5)

‘online content sharing service provider’ means a provider of an information society service
whose main or one of the main purposes is to store and give the public access to a large
amount of copyright protected works or other protected subject-matter uploaded by its users
which it organises and promotes for profit-making purposes.
Providers of services such as not-for profit online encyclopedias, not-for profit educationaland scientific repositories, open source software developing and sharing platforms, electronic
communication service providers as defined in Directive 2018/1972 establishing the European
Electronic Communication Code, online marketplaces and business-to business cloud services
and cloud services which allow users to upload content for their own use shall not be
considered online content sharing service providers within the meaning of this Directive.

(6)‘information society service’ means a service within the meaning of Article 1(1)(b) of
Directive (EU) 2015/153518.

TITLE IIMEASURES TO ADAPT EXCEPTIONS AND LIMITATIONS TO THE DIGITAL AND
CROSS-BORDER ENVIRONMENT
Article 3
Text and data mining for the purposes of scientific research

1.

Member States shall 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 and Article 11(1) of thisDirective for reproductions and extractions made by research organisations and cultural
heritage institutions in order to carry out text and data mining of works or other subject-matter
to which they have lawful access, for the purposes of scientific research.

18

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).

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1a.

Copies of works or other subject-matter made in compliance with paragraph 1 shall be storedwith an appropriate level of security and may be retained for the purposes of scientificresearch, including for the verification of research results.

2.

[Paragraph 2 of the Commission proposal was moved to Article 6(1)]3.

Rightholders shall be allowed to apply measures to ensure the security and integrity of the
networks and databases where the works or other subject-matter are hosted. Such measures
shall not go beyond what is necessary to achieve that objective.

4.

Member States shall encourage rightholders and, research organisations and cultural heritage
institutions to define commonly-agreed best practices concerning the application of theobligation and measures referred to respectively in paragraphs 1a and 3.

Article 3a
Exception or limitation for text and data mining

1.

Member States shall provide for an exception or a limitation 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)and (b) of Directive 2009/24/EC and Article 11(1) of this Directive for reproductions andextractions of lawfully accessible works and other subject-matter for the purposes of text anddata mining.

2.

Reproductions and extractions made pursuant to paragraph 1 may be retained as long asnecessary for the purposes of text and data mining.

2.*

The exception or limitation provided for in paragraph 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, such as machine readable means for the content madepublicly available online.

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3.*

This Article shall not affect the application of Article 3 of this Directive.
*[to be renumebered]

Article 4
Use of works and other subject-matter in digital and cross-border teaching activities

1.

Member States shall provide for an exception or limitation 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 in order toallow the digital use of works and other subject-matter for the sole purpose of illustration forteaching, to the extent justified by the non-commercial purpose to be achieved, provided thatsuch use:(a)takes place under the responsibility of an educational establishment, on its premises orother venues, or through a secure electronic environment accessible only by theeducational establishment's pupils or students and teaching staff; and(b)is accompanied by the indication of the source, including the author's name, unless thisturns 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 or types of works
or other subject-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 inparagraph 1 covering the needs and specificities of educational establishments are easily
available in the market.
Member States availing themselves of the provision of the first subparagraph shall take thenecessary measures to ensure appropriate availability and visibility of the licences authorising
the acts described in paragraph 1 for educational establishments.

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3.

The use of works and other subject-matter for the sole purpose of illustration for teaching
through secure electronic environments undertaken in compliance with the provisions ofnational law adopted pursuant to this Article shall be deemed to occur solely in the Member
State where the educational establishment is established.

4.

Member States may provide for fair compensation to rightholders due to the use of theirworks or other subject-matter pursuant to paragraph 1.

Article 5
Preservation of cultural heritage

Member States shall 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 Directive, permitting cultural heritage institutions to make copies of any
works or other subject-matter that are permanently in their collections, in any format or medium,for purposes of preservation of such works or other subject-matter and to the extent necessary forsuch preservation.

Article 6
Common provisions

1.

Any contractual provision contrary to the exceptions provided for in Articles 3, 4 and 5 shallbe unenforceable.

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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 shall apply to Articles 3, 3a, 4 and 5 of this Directive.
TITLE IIIMEASURES TO IMPROVE LICENSING PRACTICES AND ENSURE WIDER ACCESS TO
CONTENTCHAPTER 1
Out-of-commerce works
Article 7
Use of out-of-commerce works by cultural heritage institutions

1.

Member States shall provide that a collective management organisation, in accordance withits mandates, may conclude a non-exclusive licence for non-commercial purposes with acultural heritage institution for the reproduction, distribution, communication to the public ormaking available to the public of out-of-commerce works or other subject-matter permanently
in the collection of the institution, irrespective of whether all rightholders covered by thelicence have mandated the collective management organisation, provided that:(a)the collective management organisation is, on the basis of mandates from rightholders,sufficiently representative of rightholders in the relevant type of works or other subjectmatter and of the rights which are the subject of the licence;(b)equal treatment is guaranteed to all rightholders in relation to the terms of the licence.

(c)[Point (c) of the Commission proposal was moved to new paragraph 1b below]

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1a.

Member States shall provide for an exception or limitation 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, in order toallow cultural heritage institutions to make available out-of-commerce works or other subjectmatter that are permanently in their collections for non-commercial purposes, provided that:(a)the name of the author or any other identifiable rightholder is indicated, unless this turns
out to be impossible;

(b)
1b.

such works or other subject-matter are made available on non-commercial websites.

Member States shall provide that the exception or limitation referred to in the previous
paragraph only applies to types of works or other subject-matter for which no collective
management organisation exists that fulfils the conditions referred to in point (a) of paragraph1.

1c.

Member States shall provide that all rightholders may at any time, easily and effectively,
exclude their works or other subject-matter from the licensing mechanism referred to inparagraph 1 or from uses under the exception or limitation referred to in paragraph 1a, either
in general or in specific cases, including after the conclusion of a licence or the beginning of
the use concerned.

2.

A work or other subject-matter shall be deemed to be out-of-commerce when it can bepresumed in good faith that the whole work or other subject-matter is not available to the
public through customary channels of commerce after a reasonable effort is made to
determine such availability.
Member States may provide for specific requirements, such as a cut-off date, to determine
whether works and other subject-matter can be licensed in accordance with paragraph 1 orused under the exception or limitation referred to in paragraph 1a. Such requirements shall notextend beyond what is necessary and reasonable, and shall not preclude the possibility todetermine the out-of-commerce status of a set of works or other subject-matter as a whole,when it is reasonable to presume that all works or other subject-matter are out of commerce.

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3.

[Paragraph 3 of the Commission proposal was moved to new Article 8a(2)]4.

Member States shall ensure that the licences referred to in paragraph 1 are sought from acollective management organisation that is representative for the Member State where thecultural heritage institution is established.
[Points (a), (b) and (c) of paragraph 4 of the Commission proposal were integrated into
paragraph 5]5.

This Article shall not apply to sets of out-of-commerce works if, on the basis of thereasonable effort referred to in paragraph 2, there is evidence that such sets predominantly
consist of:(a)works or other subject-matter first published or, in the absence of publication, firstbroadcast in a third country, except for cinematographic or audiovisual works;(b)cinematographic or audiovisual works, the producers of which have their headquartersor habitual residence in a third country; or(c)works or other subject-matter of third country nationals when a Member State or a third
country could not be determined, after a reasonable effort, according to points (a) and(b);

unless the collective management organisation is sufficiently representative of rightholders ofthat third country in the meaning of point (a) of paragraph 1.

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Article 8
Cross-border uses

1.

A licence granted in accordance with Article 7 may allow the use of out-of-commerce works
or other subject-matter by the cultural heritage institution in any Member State.

2.

The uses of works and other subject-matter under the exception or limitation referred to in
Article 7(1a) shall be deemed to occur solely in the Member State where the cultural heritage
institution undertaking that use is established.
[Note: paragraph 2 of the Commission proposal was moved to new Article 8a(1)]3.

[Paragraph 3 of the Commission proposal was moved new Article 8a(1) second
subparagraph]

Article 8a
Publicity measures

1.

Member States shall ensure that information from cultural heritage institutions, collective
management organisations or relevant public authorities for the purposes of the identificationof the out-of-commerce works or other subject-matter covered by a licence granted inaccordance with Article 7(1) or used under the exception or limitation referred to in Article
7(1a) as well as information about the possibilities of rightholders referred to in Article 7(1c),and, as soon as it is available and where relevant, information on the parties to the licence, thecovered territories and the uses is made permanently, easily and effectively accessible in a
public single online portal from at least six months before the works or other subject-matterare distributed, communicated to the public or made available to the public in accordance withthe licence or under the exception or limitation.
The portal shall be established and managed by the European Union Intellectual Property
Office in accordance with Regulation (EU) No 386/2012.

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2.

Member States shall provide that, if necessary for the general awareness of rightholders,further appropriate publicity measures are taken regarding the possibility for collective
management organisations to license works or other subject-matter in accordance with Article
7, the licences granted, the uses under the exception or limitation referred to in Article 7(1a)and the possibilities of rightholders referred to in Article 7(1c).
The additional appropriate publicity measures shall be taken in the Member State where thelicence is sought in accordance to Article 7(1) or, for uses under the exception or limitationreferred to in Article 7(1a), where the cultural heritage institution is established. If there isevidence, such as the origin of the works or other subject-matter, to suggest that the awarenessof rightholders could be more efficiently raised in other Member States or third countries,
such publicity measures shall also cover those Member States and third countries.

Article 9
Stakeholder dialogue

Member States shall consult rightholders, collective management organisations and cultural
heritage institutions in each sector before establishing specific requirements pursuant to Article
7(2), and encourage a regular dialogue between representative users' and rightholders' organisations,
including collective management organisations, and any other relevant stakeholder organisations,on a sector-specific basis, to foster the relevance and usability of the licensing mechanisms referred
to in Article 7(1) and to ensure the effectiveness of the safeguards for rightholders referred to in this
Chapter.

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CHAPTER 1a
Measures to facilitate collective licensing

Article 9a
Collective licensing with an extended effect1.

Member States may provide, as far as the use within their national territory is concerned andsubject to safeguards provided for in this Article, that when a collective management
organisation, which is subject to the national rules implementing Directive 2014/26/EU,inaccordance with its mandates from rightholders, enters into a licensing agreement for the
exploitation of works or other subject-matter such an agreement may be extended to apply tothe rights of rightholders who have not authorised that collective management organisation torepresent them by way of assignment, licence or any other contractual arrangement; or, withrespect to such an agreement, the organisation has a legal mandate or is presumed to represent
rightholders who have not authorised the organisation accordingly.

2.

Member States shall ensure that the licensing mechanism referred to in paragraph 1 is only
applied within well-defined areas of use where obtaining authorisations from rightholders 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 of works or othersubject-matter concerned and that such licensing mechanism safeguards the legitimate
interests of rightholders .

3.

The safeguards referred to in paragraph 1 shall provide that:(a)the collective right management organisation is, on the basis of mandates fromrightholders, sufficiently representative of rightholders in the relevant type of works orother subject-matter and of the rights which are the subject of the licence for the
relevant Member State;(b)equal treatment is guaranteed to all rightholders, including in relation to the terms of thelicence;

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(c)

rightholders who have not authorised the organisation operating the licence may at any
time easily and effectively exclude their works or other subject-matter from thelicensing mechanism established in accordance with this Article;(d)appropriate publicity measures are taken to inform rightholders regarding the possibility
for the collective management organisation to license works or other subject-matter andthe licensing taking place in accordance with this Article, and the possibilities ofrightholders referred to in point (c) starting from a reasonable period before the works
or other subject-matter are used under the licence. Publicity measures should be
effective without the need to inform each rightholder individually.

4.

This Article does not affect the application of collective licensing mechanisms with anextended effect in conformity with other provisions of Union law, including provisions whichallow exceptions or limitations.
This article shall not apply to mandatory collective management of rights.
Article 7 of Directive 2014/26/EU shall apply to the licensing mechanism provided for in this
Article.

5.

Where a Member State provides for a licensing mechanism in accordance with this Article,
the Member State concerned shall inform the Commission about the scope of that law,
purposes and types of licences that may be introduced under that law as well as contact details
for organisations issuing licences in accordance with the mechanism in paragraph 1, and theway in which information on the licensing and the possibilities of rightholders referred to inpoint (c) of paragraph 3 can be obtained. The Commission shall publish this information.

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6.

Based on the information received pursuant to paragraph 5 and on the discussions in thecontact committee referred to in Article 12(3) of Directive 2001/29/EC, the Commission
shall, by 10 April 2021, submit to the European Parliament and to the Council a report on theuse of such mechanisms referred to in paragraph 1 in the EU, their impact on licensing andrightholders, including rightholders who are not members and/or who are nationals of, or
resident in, another Member State, their effectiveness to facilitate the dissemination ofcultural content, and the impact on the internal market, including the cross-border provision ofservices and competition. The Commission’s report shall be accompanied, if appropriate, by alegislative proposal, including as regards the cross-border effect of such national schemes.

CHAPTER 2
Access to and availability of audiovisual works on video-on-demand platforms
Article 10
Negotiation mechanism

Member States shall ensure that parties facing difficulties related to the licensing of rights whenseeking to conclude an agreement 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 designated by the Member State for the purpose of this Article or mediators shallprovide assistance to the parties with their negotiation and help them reach agreements, including,where appropriate, by submitting proposals to the parties.
Member States shall notify to the Commission the body or mediators referred to in paragraph 1 nolater than [date mentioned in Article 21(1)]. In cases where Member States have chosen to rely on
mediation, the notification to the Commission shall at least include, when available, the source
where relevant information on the entrusted mediators can be found.

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CHAPTER 3
WORKS OF VISUAL ART IN THE PUBLIC DOMAIN
Article 10b
Works of visual art in the public domain
Member States shall provide that, when the term of protection of a work of visual art has expired,
any material resulting from an act of reproduction of that work shall not be subject to copyright or
related rights, unless the material resulting from that act of reproduction is original in the sense that
it is the author's own intellectual creation.

TITLE IV
MEASURES TO ACHIEVE A WELL-FUNCTIONING MARKETPLACE FOR COPYRIGHT
CHAPTER 1
Rights in publications
Article 11
Protection of press publications concerning online uses

1.

Member States shall provide publishers of press publications established in a Member State
with the rights provided for in Article 2 and Article 3(2) of Directive 2001/29/EC for the
online use of their press publications by information society service providers. These rights
shall not apply to private or non-commercial uses of press publications carried out by
individual users.
The protection granted under the first subparagraph shall not apply to acts of hyperlinking.
The rights referred to in the first subparagraph shall not apply in respect of uses of individual
words or very short extracts of a press publication.

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2.

The rights referred to in paragraph 1 shall leave intact and shall in no way affect any rights
provided for in Union law to authors and other rightholders, in respect of the works and othersubject-matter incorporated in a press publication. The rights referred to in paragraph 1 may
not be invoked against those authors and other rightholders and, in particular, may not deprive
them of their right to exploit their works and other subject-matter independently from thepress publication in which they are incorporated.
When a work or other subject-matter is incorporated in a press publication on the basis of anon-exclusive licence, the rights referred to in paragraph 1 may not be invoked to prohibit theuse by other authorised users. The rights referred to in paragraph 1 may not be invoked toprohibit the use of works or other subject matter whose protection has expired.

3.

Articles 5 to 8 of Directive 2001/29/EC and Directives 2012/28/EU and (EU) 2017/1564 shallapply mutatis mutandis in respect of the rights referred to in paragraph 1.

4.

The rights referred to in paragraph 1 shall expire 2 years after the publication of the press
publication. This term shall be calculated from the first day of January of the year following
the date of publication.
Paragraph 1 shall not apply to press publications first published before [entry into force of the
Directive].

4a.

Member States shall provide that the authors of the works incorporated in a press publication
receive an appropriate share of the revenues that press publishers receive for the use of theirpress publications by information society service providers.

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Article 12
Claims to fair compensation

Member States may provide that where an author has transferred or licensed a right to a publisher,such a transfer or a licence constitutes a sufficient legal basis for the publisher to be entitled to ashare of the compensation for the uses of the work made under an exception or limitation to thetransferred or licensed right.
The first paragraph shall be without prejudice to existing and future arrangements in Member
States concerning public lending rights.
CHAPTER 2
Certain uses of protected content by online services
Article 13
Use of protected content by online content sharing service providers

1.

Member States shall provide that an online content sharing service provider performs an actof communication to the public or an act of making available to the public for the purposes ofthis Directive when it gives the public access to copyright protected works or other protectedsubject matter uploaded by its users.
An online content sharing service provider shall therefore obtain an authorisation from therightholders referred to in Article 3(1) and (2) of Directive 2001/29/EC, for instance by
concluding a licencing agreement, in order to communicate or make available to the public
works or other subject matter.

2.

Member States shall provide that when an authorisation has been obtained, including via alicensing agreement, by an online content sharing service provider, this authorisation shallalso cover acts carried out by users of the services falling within Article 3 of Directive
2001/29/EC when they are not acting on a commercial basis or their activity does not generatesignificant revenues.

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3.

When an online content sharing service provider performs an act of communication to the
public or an act of making available to the public, under the conditions established under thisDirective, the limitation of liability established in Article 14(1) of Directive 2000/31/EC shallnot apply to the situations covered by this Article. This shall not affect the possible
application of Article 14(1) of Directive 2000/31/EC to these service providers for purposes
falling outside the scope of this Directive.

4.

If no authorisation is granted, online content sharing service providers shall be liable forunauthorised acts of communication to the public of copyright protected works and othersubject 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 the unavailability of specific works and other subject
matter for which the rightholders have provided the service providers with therelevant and necessary information, and in any event(c)acted expeditiously, upon receiving a sufficiently substantiated notice by therightholders, to remove from their websites or to disable access to the notified works
and subject matters, and made best efforts to prevent their future uploads in accordancewith paragraph (b).

4a.

In determining whether the service has complied with its obligations under paragraph 4 and in
the light of the principle of proportionality the following should, among others be taken into
account:(a)the type, the audience and the size of services and the type of works or other subject
matter uploaded by the users;(b)

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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 whichhave an annual turnover below EUR 10 million within the meaning of the Commission
Recommendation 2003/361/EC, the conditions applicable to them under the liability regime
set out in paragraph 4 are limited to the compliance with the point (a) of paragraph 4 and toacting expeditiously, upon receiving a sufficiently substantiated notice, to remove the notified
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 and necessary information.
5.

The cooperation between online content service providers and rightholders shall not result in
the prevention of the availability of works or other subject matter uploaded by users which do
not infringe copyright and related rights, including where such works or subject matter arecovered by an exception or limitation.
Member States shall ensure that users in all Member States(*) are able to rely on thefollowing 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.

[(*) exact wording of “in all Member States" to be revised by lawyer-linguists]
6.

[paragraph 6 as was contained in a previous text version was deleted/merged into
paragraph 4; the numbering of paragraphs of Article 13 was kept for ease of reference]

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7.

The application of the provisions in this article shall not lead to any general monitoring
obligation.
Member States shall provide that online content sharing service providers shall provide
rightholders, at their request, with adequate information on the functioning of their practices
with regard to the cooperation referred to in paragraph 4 and, where licensing agreements areconcluded between service providers and rightholders, information on the use of content
covered by the agreements.

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 incase of disputes over the removal of or disabling access to 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 thismechanism shall be processed without undue delay and decisions to remove or disable access
to uploaded content shall be subject to human review.
Member States shall also ensure that out-of-court redress mechanisms are available for thesettlement of disputes. Such mechanisms shall enable disputes to be settled impartially andshall not deprive the user of the legal protection afforded by national law, without prejudice tothe rights of users to have recourse to efficient judicial remedies. In particular, Member Statesshall ensure that users have access to a court or another relevant judicial authority to assert theuse of an exception or limitation to copyright rules.
This Directive shall in no way affect legitimate uses, such as uses under exceptions andlimitations provided for in Union 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.
Online content sharing service providers shall inform the users in their terms and conditions
about the possibility for them to use works and other subject matter under exceptions orlimitations to copyright and related rights provided for in Union law.

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9.

As of [date of entry into force of this Directive] the Commission in cooperation with theMember States shall organise stakeholder dialogues to discuss best practices for thecooperation 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 accountshall be taken, among others, of the need to balance the fundamental rights and the use of
exceptions and limitations. For the purpose of this stakeholders dialogue, users associations
shall have access to adequate information from online content sharing service providers on thefunctioning of their practices with regard to paragraph 4.

CHAPTER 3
Fair remuneration in exploitation contracts of authors and performers
Article -14
Principle of appropriate and proportionate remuneration

1.

Member States shall ensure that when authors and performers license or transfer their
exclusive rights for the exploitation of their works or other subject matter they are entitled toreceive appropriate and proportionate remuneration.

2.

In the implementation of this principle into national law, Member States shall be free to use
different mechanisms and take into account the principle of contractual freedom and a fairbalance of rights and interests.

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Article 14
Transparency obligation

1.

Member States shall ensure that authors and performers receive on a regular basis, at least
once a year, and taking into account the specificities of each sector up to date, relevant andcomprehensive information on the exploitation of their works and performances from those towhom they have licensed or transferred their rights or their successors in title, notably as
regards modes of exploitation, all revenues generated and remuneration due.

1a.

Member States shall ensure that where the rights referred to in paragraph 1 have subsequently
been licensed, authors and performers or their representatives shall, at their request, receivefrom sub-licencees additional information if their first contractual counterpart does not holdall the information that would be necessary for the purposes of paragraph 1.
Where this information is requested, the first contractual counterpart of authors andperformers shall provide information on the identity of those sub-licensees.
Member States may provide that any such request to those sub-licensees is made directly or
indirectly through the contractual counterpart of the author or the performer.

2.

The obligation in paragraph 1 shall be proportionate and effective to ensure a high level oftransparency in every sector. Member States may provide that in duly justified cases where
the administrative burden resulting from the obligation in paragraph 1 would become
disproportionate in view of the revenues generated by the exploitation of the work or
performance, the obligation is limited to the types and level of information that canreasonably be expected in such cases.

3.

Member States may decide that the obligation in paragraph 1 does not apply when thecontribution of the author or performer is not significant having regard to the overall work or
performance, unless the author or performer demonstrates that he requires the information forexercising his rights under Article 15(1) and requests the information for that purpose.

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3a.

Members States may provide that for agreements subject to or based on collective bargaining
agreements the transparency rules of the relevant collective bargaining agreement are
applicable provided that they meet the criteria laid down in paragraphs 1 to 3.

4.

When Article 18 of Directive 2014/26/EU is applicable, the obligation laid down in paragraph1 shall not apply in respect of agreements concluded by entities defined in Article 3(a) and (b)of Directive 2014/26/EU or by other entities subject to the national rules implementing
Directive 2014/26/EU.

Article 15
Contract adjustment mechanism

1.

Member States shall ensure, in the absence of an applicable collective bargaining agreement
providing for a comparable mechanism, that authors and performers or their representatives
are entitled to claim additional, appropriate and fair remuneration from the party with whomthey entered into a contract for the exploitation of the rights or their successors in title, when
the remuneration originally agreed turns out to be disproportionately low compared to all thesubsequent relevant revenues and derived from the exploitation of the works or performances.

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 nationalrules implementing Directive 2014/26/EU.

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Article 16
Dispute resolution procedure

Member States shall provide that disputes concerning the transparency obligation under Article 14
and the contract adjustment mechanism under Article 15 may be submitted to a voluntary,alternative dispute resolution procedure. Member States shall ensure that representative
organisations of authors and performers may initiate such procedures at the specific request of one
or more authors and performers.
Article 16a
Right of revocation

1.

Member States shall ensure that where an author or a performer has licensed or transferred
her or his rights concerning a work or other protected subject-matter on an exclusive basis, theauthor or performer may revoke in whole or in part the licence or the transfer of rights where
there is a lack of exploitation of the work or other protected subject-matter .

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2.

Specific provisions for the mechanism for revocation may be provided for in national law
taking into account(a)the specificities of the different sectors and the different types of works andperformances; and(b)where a work or other subject-matter contains the contribution of more than one author
or performer, the relative importance of the individual contributions and the legitimate
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 application of themechanism if such works or subject matter usually contain contributions of a plurality ofauthors or performers.
Member States may provide that the revocation mechanism shall be exercised only within a
specific time frame, where this is duly justified by the specificities of the sector, type of workor protected subject matter concerned.
Member States may provide that that authors or performers may choose to terminate theexclusivity of the contract instead of revoking the rights.

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3.

Member States shall provide that the revocation provided for in paragraph 1 may be exercised
only after a reasonable time after the conclusion of the licence or transfer agreement. The
author or performer shall notify the person to whom the rights have been licensed ortransferred and set an appropriate deadline by which the exploitation of the licensed ortransferred rights is to take place. After the expiration of that deadline, the author or performer
may choose to terminate the exclusivity of the contract instead of revoking the license or thetransfer.

4.

Paragraph 1 shall not apply if the non-exercise of the rights is predominantly due tocircumstances which the author or the performer can be reasonably expected to remedy.

5.

Member States may provide that any contractual provision derogating from the revocation
mechanism shall be enforceable only if it is based on a collective bargaining agreement.

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Article 16a
Common provisions

1.

Member States shall ensure that any contractual provision which prevents the compliancewith the provisions in this Chapter(*) shall be unenforceable in relation to authors andperformers.
[(*)Note to lawyer linguists: 'Chapter' refers to Articles 14, 15 and 16, ie the provisions of theinitial Commission proposal]

2.

Members States shall provide that Articles -14 to 16a(**) of this Directive do not apply toauthors of a computer program in the sense of Article 2 of Directive 2009/24/EC of theEuropean Parliament and of the Council of 23 April 2009 on the legal protection of computer
programs.19[(**) Note to lawyer linguists: The reference to Article 16a here should be understood as
reference to Article 16a on revocation right)]

19

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.

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TITLE V
FINAL PROVISIONS
Article 17
Amendments to other directives

1.

Directive 96/9/EC is amended as follows:(a)

In Article 6(2), point (b) is replaced by the following:"(b) where there is use for the sole purpose of illustration for teaching or scientificresearch, as long as the source is indicated and to the extent justified by the noncommercial purpose to be achieved, without prejudice to the exceptions and thelimitation provided for in Directive [this Directive];"(b)

In Article 9, point (b) is replaced by the 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 be achieved, without prejudice to the exceptions and thelimitation provided for in Directive [this Directive];"2.

Directive 2001/29/EC is amended as follows:(a)

In Article 5(2), point (c) is replaced by the following:"(c) in respect of specific acts of reproduction made by publicly accessible libraries,
educational establishments or museums, or by archives, which are not for direct orindirect economic or commercial advantage, without prejudice to the exception
provided for in Directive [this Directive];"

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(b)

In Article 5(3), point (a) is replaced by the following:"(a) use for the sole purpose of illustration for teaching or scientific research, as longas the source, including the author's name, is indicated, unless this turns out to be
impossible and to the extent justified by the non-commercial purpose to be achieved,
without prejudice to the exceptions and the limitation provided for in Directive [thisDirective];"(c)

In Article 12(4), the following points are added:"(e) to examine the impact of the transposition of Directive [this Directive] on thefunctioning of the internal market and to highlight any transposition difficulties;(f) to facilitate the exchange of information on the relevant developments in legislationand case law as well as on the practical application of the measures taken by Member
States to implement Directive [this Directive];(g) to discuss any other questions arising from the application of Directive [thisDirective]."

Article 17 a

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

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Article 18
Application in time1.

This Directive shall apply in respect of all works and other subject-matter which are protectedby the Member States' legislation in the field of copyright on or after [the date mentioned in
Article 21(1)].

2.

[Deleted]

3.

This Directive shall apply without prejudice to any acts concluded and rights acquired before[the date mentioned in Article 21(1)].

Article 19
Transitional provision

Agreements for the licence or transfer of rights of authors and performers shall be subject to thetransparency obligation in Article 14 as from [one year after the date mentioned in Article 21(1)].
Article 20
Protection of personal data

The processing of personal data carried out within the framework of this Directive shall be carriedout in compliance with Directives 95/46/EC and 2002/58/EC.

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Article 21
Transposition

1.

Member States shall bring into force the laws, regulations and administrative provisions
necessary to comply with this Directive by 24 months after entry into force] at the latest.
They shall forthwith communicate to the Commission the text of those provisions.
When Member States adopt those provisions, they shall contain a reference to this Directive
or be accompanied by such a reference on the occasion of their official publication. Member
States shall determine how such reference is to be made.

2.

Member States shall communicate to the Commission the text of the main provisions ofnational law which they adopt in the field covered by this Directive.

Article 22
Review

1.

No sooner than [five years after the date mentioned in Article 21(1)], the Commission shallcarry out a review of this Directive and present a report 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 of transposition deadline set out in
Article 21(1)], assess the impact of the specific liability regime of Article 13 applicable toonline content sharing service providers which have an annual turnover of less than EUR 10
million and whose services have been available to the public in the Union for less than three
years under(4aa) and, if appropriate, take action in accordance with the conclusions of its
assessment.

2.

Member States shall provide the Commission with the necessary information for the
preparation of the report referred to in paragraph 1.

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Article 23
Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the
Official Journal of the European Union.

Article 24
Addressees

This Directive is addressed to the Member States.
Done at Brussels,

For the European Parliament

For the Council

The President

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The President

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