Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on copyright in the Digital Single Market
Date: 2016-09-14
Institutions: Directorate-General for Communications Networks, Content and Technology, European Commission
Subjects: Internet, audiovisual industry, copyright, cross-frontier data flow, cultural heritage, digital technology, reprography, single market, trans-European network, transmission network

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   EUROPEAN COMMISSION  Brussels, 14.9.2016  COM(2016) 593 final 2016/0280 (COD)   Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on copyright in the Digital Single Market (Text with EEA relevance) {SWD(2016) 301 final} {SWD(2016) 302 final}  
 
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The evolution of digital technologies has changed the way works and other protected subject-
matter  are  created,  produced,  distributed  and  exploited.  New  uses  have  emerged  as  well  as 
new actors and new business models. In the digital environment, cross-border uses have also 
intensified  and  new  opportunities  for  consumers  to  access  copyright-protected  content  have 
materialised.  Even  though  the  objectives  and  principles  laid  down  by  the  EU  copyright 
framework remain sound, there is a need to adapt it to these new realities. Intervention at EU 
level is also needed to  avoid  fragmentation in the internal market. Against  this  background, 
the Digital Single Market Strategy1  adopted in May  2015 identified the need “to reduce the 
differences between national copyright regimes and allow for wider online access to works by 
users  across  the  EU”.  This  Communication  highlighted  the  importance  to  enhance  cross-
border  access  to  copyright-protected  content  services,  facilitate  new  uses  in  the  fields  of 
research and education, and clarify the role of online services in the distribution of works and 
other subject-matter. In December 2015, the Commission issued a Communication ‘Towards 
a  modern,  more  European  copyright  framework’2.  This  Communication  outlined  targeted 
actions and a long-term vision to modernise EU copyright rules. This proposal is one of the 
measures aiming at addressing specific issues identified in that Communication. 

Exceptions and limitations to copyright and neighbouring rights are harmonised at EU level. 
Some  of  these  exceptions  aim  at  achieving  public  policy  objectives,  such  as  research  or 
education.  However,  as  new  types  of  uses  have  recently  emerged,  it  remains  uncertain 
whether  these  exceptions  are  still  adapted  to  achieve  a  fair  balance  between  the  rights  and 
interests  of  authors  and  other  rightholders  on  the  one  hand,  and  of  users  on  the  other.  In 
addition, these exceptions remain national and legal certainty around cross-border uses is not 
guaranteed. In this context, the Commission has identified three areas of intervention: digital 
and cross-border uses in the field of education, text and data mining in the field of scientific 
research,  and  preservation  of  cultural  heritage.  The  objective  is  to  guarantee  the  legality  of 
certain  types  of  uses  in  these  fields,  including  across  borders.  As  a  result  of  a  modernised 
framework of exceptions and limitations, researchers will benefit from a clearer legal space to 
use innovative text and data mining research tools, teachers and students will be able to take 
full  advantage  of  digital  technologies  at  all  levels  of  education  and  cultural  heritage 
institutions  (i.e.  publicly  accessible  libraries  or  museums,  archives  or  film  or  audio  heritage 
institutions) will be supported in their efforts to preserve the cultural heritage, to the ultimate 
advantage of EU citizens. 

Despite  the  fact  that  digital  technologies  should  facilitate  cross-border  access  to  works  and 
other  subject-matter,  obstacles  remain,  in  particular  for  uses  and  works  where  clearance  of 
rights is complex. This is the case for cultural heritage institutions wanting to provide online 
access, including across borders, to out-of-commerce works contained in their catalogues. As 
a  consequence  of  these  obstacles  European  citizens  miss  opportunities  to  access  cultural 
heritage.  The  proposal  addresses  these  problems  by  introducing  a  specific  mechanism  to 
facilitate  the  conclusion  of  licences  for  the  dissemination  of  out-of-commerce  works  by 
cultural heritage institutions. As regards audiovisual works, despite the growing importance of 
video-on-demand  platforms,  EU  audiovisual  works  only  constitute  one  third  of  works 

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COM(2015) 192 final. 
COM(2015) 626 final. 

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available to consumers on those platforms. Again, this lack of availability partly derives from 
a  complex  clearance  process.  This  proposal  provides  for  measures  aiming  at  facilitating  the 
licensing  and  clearance  of  rights  process.  This  would  ultimately  facilitate  consumers'  cross-
border access to copyright-protected content. 

Evolution  of  digital  technologies  has  led  to  the  emergence  of  new  business  models  and 
reinforced the role of the Internet as the main marketplace for the distribution and access to 
copyright-protected  content.  In  this  new  framework,  rightholders  face  difficulties  when 
seeking to license their rights and be remunerated for the online distribution of their works. 
This  could  put  at  risk  the  development  of  European  creativity  and  production  of  creative 
content. It is therefore necessary to guarantee that authors and rightholders receive a fair share 
of the value that is generated by the use of their works and other subject-matter. Against this 
background,  this  proposal  provides  for  measures  aiming  at  improving  the  position  of 
rightholders  to  negotiate  and  be  remunerated  for  the  exploitation  of  their  content  by  online 
services giving access to user-uploaded content. A fair sharing of value is also necessary to 
ensure  the  sustainability  of  the  press  publications  sector.  Press  publishers  are  facing 
difficulties in licensing their publications online and obtaining a fair share of the value they 
generate. This could ultimately affect citizens' access to information. This proposal provides 
for a new right for press publishers aiming at facilitating online licensing of their publications, 
the  recoupment  of  their  investment  and  the  enforcement  of  their  rights.  It  also  addresses 
existing legal uncertainty as regards the possibility for all publishers to receive a share in the 
compensation  for  uses  of  works  under  an  exception.  Finally,  authors  and  performers  often 
have a weak bargaining position in their contractual relationships, when licensing their rights. 
In addition, transparency on the revenues generated by the use of their works or performances 
often remains limited. This ultimately affects the remuneration of the authors and performers. 
This  proposal  includes  measures  to  improve  transparency  and  better  balanced  contractual 
relationships  between  authors  and  performers  and  those  to  whom  they  assign  their  rights. 
Overall,  the  measures  proposed  in  title  IV  of  the  proposal  aiming  at  achieving  a  well-
functioning  market  place  for  copyright  are  expected  to  have  in  the  medium  term  a  positive 
impact on the production and availability of content and on media pluralism, to the ultimate 
benefit of consumers. 

• 

Consistency with existing policy provisions in the policy area 

The Digital Single Market Strategy  puts  forward a range of  initiatives with  the objective of 
creating an internal market for digital content and services. In December 2015, a first step has 
been  undertaken  by  the  adoption  by  the  Commission  of  a  proposal  for  a  Regulation  of  the 
European  Parliament  and  of  the  Council  on  ensuring  the  cross-border  portability  of  online 
content services in the internal market3. 

The  present  proposal  aims  at  addressing  several  of  the  targeted  actions  identified  in  the 
Communication  ‘Towards  a  modern,  more  European  copyright  framework’.  Other  actions 
identified  in  this  Communication  are  covered  by  the  ‘Proposal  for  a  Regulation  of  the 
European Parliament and of the Council laying down rules on the exercise of copyright and 
related  rights  applicable  to  certain  online  transmissions  of  broadcasting  organisations  and 
retransmissions  of  television  and  radio  programmes’4,  the  ‘Proposal  for  a  Regulation  of  the 
European Parliament and of the Council on the cross-border exchange between the Union and 
third countries of accessible format copies of certain works and other subject-matter protected 
by copyright and related rights for the benefit of persons who are blind, visually impaired or 

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COM(2015) 627 final. 
COM(2016) 594 final. 

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otherwise print disabled’5 and the ‘Proposal for a Directive of the European Parliament and of 
the  Council  on  certain  permitted  uses  of  works  and  other  subject-matter  protected  by 
copyright  and  related  rights  for  the  benefit  of  persons  who  are  blind,  visually  impaired  or 
otherwise print disabled and amending Directive 2001/29/EC on the harmonisation of certain 
aspects of copyright and related rights in the information society’6, adopted on the same date 
of this proposal for a Directive. 

This proposal is consistent with the existing EU copyright legal framework. This proposal is 
based  upon,  and  complements  the  rules  laid  down  in  Directive  96/9/EC7,  Directive 
2001/29/EC8,  Directive  2006/115/EC9,  Directive  2009/24/EC10,  Directive  2012/28/EU11  and 
Directive  2014/26/EU12.  Those  Directives,  as  well  as  this  proposal,  contribute  to  the 
functioning  of  the  internal  market,  ensure  a  high  level  of  protection  for  right  holders  and 
facilitate the clearance of rights. 

This proposal complements Directive 2010/13/EU13 and the proposal14 amending it. 

• 

Consistency with other Union policies 

This  proposal  would  facilitate  education  and  research,  improve  dissemination  of  European 
cultures  and  positively  impact  cultural  diversity.  This  Directive  is  therefore  consistent  with 
Articles 165, 167 and 179 of the Treaty on the Functioning of the European Union (TFEU). 
Furthermore, this proposal contributes to promoting the interests of consumers, in accordance 
with the EU policies in the field of consumer protection and Article 169 TFEU, by allowing a 
wider access to and use of copyright-protected content. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The  proposal  is  based  on  Article  114  TFEU.  This  Article  confers  on  the  EU  the  power  to 
adopt measures  which have as their  object the establishment and functioning of the internal 
market. 

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COM(2016) 595 final. 
COM(2016) 596 final. 
Directive  96/9/EC  of  the  European  Parliament  and  of  the  Council  of  11  March  1996  on  the  legal 
protection of databases (OJ L 077, 27.03.1996, p. 20-28). 
Directive  2001/29/EC  of  the  European  Parliament  and  of  the  Council  of  22  May  2001  on  the 
harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 
22.6.2001, p. 10–19). 
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental 
right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 
L 376, 27.12.2006, p. 28–35). 
Directive  2009/24/EC  of  the  European  Parliament  and  of  the  Council  of  23  April  2009  on  the  legal 
protection of computer programs (OJ L 111, 5.5.2009, p. 16–22). 
Directive  2012/28/EU  of  the  European  Parliament  and  of  the  Council  of  25  October  2012  on  certain 
permitted uses of orphan works (OJ L 299, 27.10.2012, p. 5–12). 
Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective 
management of copyright 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). 
Directive  2010/13/EU  of  the  European  Parliament  and  of  the  Council  of  10  March  2010  on  the 
coordination  of  certain  provisions  laid  down  by  law,  regulation  or  administrative  action  in  Member 
States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) 
(OJ L 95, 15.4.2010, p. 1–24). 
COM(2016) 287 final. 

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• 

Subsidiarity (for non-exclusive competence)  

Since exceptions and limitations to copyright and related rights are harmonised at EU level, 
the  margin  of  manoeuver  of  Member  States  in  creating  or  adapting  them  is  limited.  In 
addition,  intervention  at  national  level  would  not  be  sufficient  in  view  of  the  cross-border 
nature  of  the  identified  issues.  EU  intervention  is  therefore  needed  to  achieve  full  legal 
certainty as regards cross-border uses in the fields of research, education and cultural heritage. 

Some  national  initiatives  have  already  been  developed  to  facilitate  dissemination  of  and 
access  to  out-of-commerce  works.  However,  these  initiatives  only  exist  in  some  Member 
States and are only applicable on the national territory. EU intervention is therefore necessary 
to  ensure  that  licensing  mechanisms  for  the  access  and  dissemination  of  out-of-commerce 
works  are  in  place  in  all  Member  States  and  to  ensure  their  cross-border  effect.  As  regards 
online  exploitation  of  audiovisual  works,  to  foster  the  availability  of  European  works  on 
video-on-demand  platforms  across  the  EU,  there  is  a  need  to  facilitate  negotiations  of 
licensing agreements in all Member States. 

Online  distribution  of  copyright-protected  content  is  by  essence  cross-border.  Only 
mechanisms  decided  at  European  level  could  ensure  a  well-functioning  marketplace  for  the 
distribution  of  works  and  other  subject-matter  and  to  ensure  the  sustainability  of  the 
publishing sector in the face of the challenges of the digital environment. Finally, authors and 
performers should enjoy in all Member States the high level of protection established by EU 
legislation.  In  order  to  do  so  and  to  prevent  discrepancies  across  Member  States,  it  is 
necessary  to  set  an  EU  common  approach  to  transparency  requirements  and  mechanisms 
allowing  for  the  adjustment  of  contracts  in  certain  cases  as  well  as  for  the  resolution  of 
disputes. 

• 

Proportionality 

The  proposal  provides  for  mandatory  exceptions  for  Member  States  to  implement.  These 
exceptions  target  key  public  policy  objectives  and  uses  with  a  cross-border  dimension. 
Exceptions  also  contain  conditions  that  ensure  the  preservation  of  functioning  markets  and 
rightholders' interests and incentives to create and invest. When relevant, and while ensuring 
that the objectives of the Directive are met, room for national decision has been preserved. 

The  proposal  requires  Member  States  to  establish  mechanisms  aiming  at  facilitating  the 
clearance  of copyright  and related rights  in the fields  of out-of-commerce  works and  online 
exploitation of audiovisual works. Whereas the proposal aims at ensuring a wider access and 
dissemination  of  content,  it  does  so  while  preserving  the  rights  of  authors  and  other 
rightholders.  Several  safeguards  are  put  in  place  to  that  effect  (e.g.  opt-out  possibilities, 
preservation  of  licensing  possibilities,  participation  in  the  negotiation  forum  on  a  voluntary 
basis). The proposal does not go further than what is necessary to achieve the intended aim 
while leaving sufficient room for Member States to make decisions as regards the specifics of 
these mechanisms and does not impose disproportionate costs. 

The  proposal  imposes  obligations  on  some  information  society  services.  However,  these 
obligations  remain  reasonable  in  view  of  the  nature  of  the  services  covered,  the  significant 
impact  of  these  services  on  the  online  content  market  and  the  large  amounts  of  copyright-
protected  content  stored  by  these  services.  The  introduction  of  a  related  right  for  press 
publishers would improve legal certainty and their bargaining position, which is the pursued 
objective. The proposal is proportionate as it only covers press publications and digital uses. 
Furthermore, the proposal will not affect retroactively any acts undertaken or rights acquired 
before  the  date  of  transposition.  The  transparency  obligation  contained in  the  proposal  only 

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aims  at  rebalancing  contractual  relationships  between  creators  and  their  contractual 
counterparts while respecting contractual freedom. 

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Choice of the instrument 

The  proposal  relates  to,  and  in  some  instances  modifies,  existing  Directives.  It  also  leaves, 
when  appropriate  and taking  into  account the  aim  to  be  achieved,  margin  of  manoeuver  for 
Member States while ensuring that the objective of a functioning internal market is met. The 
choice of a Directive is therefore adequate. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

The Commission carried out a review of the existing copyright rules between 2013 and 2016 
with the objective to “ensure that copyright and copyright-related practices stay fit for purpose 
in the new digital context”15. Even if it started before the adoption of the Commission's Better 
Regulation  Agenda  in  May  201516,  this  review  process  was  carried  out  in  the  spirit  of  the 
Better Regulation guidelines. The review process highlighted, in particular, problems with the 
implementation of certain exceptions and their lack of cross-border effect17 and pointed out to 
difficulties  in  the  use  of  copyright-protected content,  notably  in  the  digital  and  cross-border 
context that have emerged in recent years. 

• 

Stakeholder consultations 

Several public consultations were held by the Commission. The consultation on the review of 
the EU copyright rules carried out between 5 December 2013 and 5 March 201418 provided 
the Commission with an overview of stakeholders' views on the review of the EU copyright 
rules,  including  on  exceptions  and  limitations  and  on  the  remuneration  of  authors  and 
performers.  The  public  consultation  carried  out  between  24  September  2015  and  6  January 
2016  on  the  regulatory  environment  for  platforms,  online  intermediaries,  data  and  cloud 
computing  and  the  collaborative  economy19  provided  evidence  and  views  from  all 
stakeholders  on  the  role  of  intermediaries  in  the  online  distribution  of  works  and  other 
subject-matter.  Finally,  a  public  consultation  was  held  between  the  23  March  2016  and  15 
June  2016  on  the  role  of  publishers  in  the  copyright  value  chain  and  on  the  'panorama 
exception'. This consultation allowed collecting views notably on the possible introduction in 
EU law of a new related right for publishers. 

In  addition,  between  2014  and  2016,  the  Commission  had  discussions  with  the  relevant 
stakeholders on the different topics addressed by the proposal. 

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COM(2012) 789 final. 
COM(2015) 215 final. 
Covering, respectively, the exception on illustration for teaching and research (as it relates to text and 
data mining) and on specific acts of reproduction (as it relates to preservation). 
Reports on the responses to the consultation available on: 
http://ec.europa.eu/internal_market/consultations/2013/copyright-rules/docs/contributions/consultation-
report_en.pdf  
First 
consultation-regulatory-environment-platforms-online-intermediaries  

results  available  on  https://ec.europa.eu/digital-single-market/news/first-brief-results-public-

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• 

Collection and use of expertise 

Legal20  and  economic21  studies  have  been  conducted  on  the  application  of  Directive 
2001/29/EC,  on  the  economic  impacts  of  adapting  some  exceptions  and  limitations,  on  the 
legal framework of text and data mining and on the remuneration of authors and performers. 

Impact assessment 

• 
An  impact  assessment  was  carried  out  for  this  proposal22.  On  22  July  2016,  the  Regulatory 
Scrutiny Board gave a positive opinion on the understanding that the impact assessment will 
be further improved.23 The final Impact Assessment takes into account comments contained in 
that opinion. 

The Impact Assessment examines the baseline scenarios, policy options and their impacts for 
eight topics regrouped under three chapters, namely (i) ensuring wider access to content, (ii) 
adapting  exceptions  to  digital  and  cross-border  environment  and  (iii)  achieving  a  well-
functioning marketplace for copyright. The impact on the different stakeholders was analysed 
for  each  policy  option;  taking  in  particular  into  account  the  predominance  of  SMEs  in  the 
creative  industries  the  analysis  concludes  that  introducing  a  special  regime  would  not  be 
appropriate  as  it  would  defeat  the  purpose  of  the  intervention.  The  policy  options  of  each 
topic are shortly presented below.  

Access  and  availability  of  audiovisual  works  on  video-on-demand  platforms:  A  non-
legislative  option  (Option  1),  consisting  in  the  organisation  of  a  stakeholder  dialogue  on 
licensing issues, was not retained as it was deemed insufficient to address individual cases of 
blockages. The chosen option (Option 2) combines the organisation of a stakeholder dialogue 
with the obligation for Member States to set up a negotiation mechanism. 

Out-of-commerce works: Option 1 required Member States to put in place legal mechanisms, 
with  cross-border  effect,  to  facilitate  licensing  agreements  for  out-of-commerce  books  and 
learned  journals  and  to  organise  a  stakeholder  dialogue  at  national  level  to  facilitate  the 
implementation of that mechanism. Option 2 went further since it applied to all types of out-
of-commerce works. This extension was deemed necessary to address the licensing of out-of-
commerce works in all sectors. Option 2 was therefore chosen. 

20 

21 

22 
23 

of 

the 

and 

text 

data 

Study  on  the  application  of  Directive  2001/29/EC  on  copyright  and  related  rights  in  the  information 
society:  http://ec.europa.eu/internal_market/copyright/studies/index_en.htm;  Study  on 
legal 
framework 
mining: 
http://ec.europa.eu/internal_market/copyright/docs/studies/1403_study2_en.pdf;  Study  on  the  making 
available  right  and  its  relationship  with  the  reproduction  right  in  cross-border  digital  transmissions: 
http://ec.europa.eu/internal_market/copyright/docs/studies/141219-study_en.pdf; 
the 
remuneration  of  authors  and  performers  for  the  use  of  their  works  and  the  fixation  of  their 
https://ec.europa.eu/digital-single-market/en/news/commission-gathers-evidence-
performances: 
remuneration-authors-and-performers-use-their-works-and-fixations;  Study  on  the  remuneration  of 
authors  of  books  and  scientific  journals,  translators,  journalists  and  visual  artists  for  the  use  of  their 
works: [hyperlink to be included – publication pending] 
Study “Assessing the economic impacts of adapting certain limitations and exceptions to copyright and 
the  EU” :  http://ec.europa.eu/internal_market/copyright/docs/studies/131001-
related 
study_en.pdf  and  “Assessing  the  economic  impacts  of  adapting  certain  limitations  and  exceptions  to 
copyright 
options”: 
http://ec.europa.eu/internal_market/copyright/docs/studies/140623-limitations-economic-impacts-
study_en.pdf  
Add link to IA and Executive Summary. 
Add link to RSB opinion. 

the  EU – Analysis 

specific 

related 

policy 

Study 

rights 

rights 

and 

on 

of 

in 

in 

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Use of works and other subject-matter in digital and cross-border teaching activities: Option 1 
consisted in providing guidance to Member States on the application of the existing teaching 
exception in the digital environment and the organisation of a stakeholder dialogue. This was 
considered not sufficient to ensure legal certainty, in particular as regards cross-border uses. 
Option  2  required  the  introduction  of  a  mandatory  exception  with  a  cross-border  effect 
covering digital uses. Option 3 is similar to Option 2 but leaves some flexibility to Member 
States that can decide to apply the exception depending on the availability of licences. This 
option was deemed to be the most proportionate one. 

Text  and  data  mining:  Option  1  consisted  in  self-regulation  initiatives  from  the  industry. 
Other options consisted in the introduction of a mandatory exception covering text and data 
mining.  In  Option  2,  the  exception  only  covered  uses  pursuing  a  non-commercial  scientific 
research  purpose.  Option  3  allowed  uses  for  commercial  scientific  research  purpose  but 
limited the benefit of the exception to some beneficiaries. Option 4 went further as it did not 
restrict beneficiaries. Option 3 was deemed to be the most proportionate one. 

Preservation of cultural heritage: Option 1 consisted in the provision of guidance to Member 
States on the implementation of the exception on specific acts of reproduction for preservation 
purposes. This Option was rejected as it was deemed insufficient to achieve legal certainty in 
the field. Option 2, consisting in a mandatory exception for preservation purposes by cultural 
heritage institutions, was chosen. 

Use of copyright-protected content by information society services storing and giving access 
to  large  amounts  of  works  and  other  subject-matter  uploaded  by  their  users:  Option  1 
consisted in the organisation of a stakeholder dialogue. This approach was rejected as it would 
have a limited impact on the possibility for rightholders to determine the conditions of use of 
their works and other subject-matter. The chosen option (Option 2) goes further and provides 
for  an  obligation  for  certain  service  providers  to  put  in  place  appropriate  technologies  and 
fosters the conclusion of agreements with rightholders. 

Rights in publications: Option 1 consisted in the organisation of a stakeholder dialogue to find 
solutions  for  the  dissemination  of  press  publishers'  content.  This  option  was  deemed 
insufficient to ensure legal certainty across the EU. Option 2 consisted in the introduction of a 
related right covering digital uses of press publications. In addition to this, Option 3 leaves the 
option  for  Member  States  to  enable  publishers,  to  which  rights  have  been  transferred  or 
licensed by an author, to claim a share in the compensation for uses under an exception. This 
last option was the one retained as it addressed all relevant problems. 

Fair remuneration in contracts of authors and performers: Option 1 consisted in providing a 
recommendation  to  Member  States  and  organising  a  stakeholder  dialogue.  This  option  was 
rejected  since  it  would  not  be  efficient  enough.  Option  2  foresaw  the  introduction  of 
transparency obligations on the contractual counterparts of creators. On top of that, Option 3 
proposed the introduction of a remuneration adjustment mechanism and a dispute resolution 
mechanism.  This  option  was  the  one  retained  since  Option  2  would  not  have  provided 
enforcement means to creators to support the transparency obligation. 

• 

Regulatory fitness and simplification 

For  the  uses  covered  by  the  exceptions,  the  proposal  will  allow  educational  establishments, 
public-interest  research  institutions  and  cultural  heritage  institutions  to  reduce  transaction 
costs. This reduction of transaction  costs does not necessarily  mean that rightholders would 
suffer  a  loss  of  income  or  licensing  revenues:  the  scope  and  conditions  of  the  exceptions 

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ensure that rightholders would suffer minimal harm. The impact on SMEs in these fields (in 
particular scientific and educational publishers) and on their business models should therefore 
be limited. 

Mechanisms aiming to improve licensing practices are likely to reduce transaction costs and 
increase  licensing  revenues  for  rightholders.  SMEs  in  the  fields  (producers,  distributors, 
publishers,  etc.)  would  be  positively  affected.  Other  stakeholders,  such  as  VoD  platforms, 
would also be positively affected. The proposal also includes several measures (transparency 
obligation on rightholders' counterparts, introduction of a new right for press publishers and 
obligation  on  some  online  services)  that  would  improve  the  bargaining  position  of 
rightholders and the control they have on the use of their works and other subject-matter. It is 
expected to have a positive impact on rightholders' revenues. 

The proposal includes new obligations on some online services and on those to which authors 
and performers transfer their rights. These obligations may impose additional costs. However, 
the proposal ensures that the costs will remain proportionate and that, when necessary, some 
actors  would  not  be  subject  to  the  obligation.  For  instance,  the  transparency  obligation  will 
not  apply  when  the  administrative  costs  it  implies  are  disproportionate  in  view  of  the 
generated  revenues.  As  for  the  obligation  on  online  services,  it  only  applies  to  information 
society  services  storing  and  giving  access  to  large  amounts  of  copyright-protected  content 
uploaded by their users. 

The proposal foresees the obligation for Member States to implement negotiation and dispute 
resolution  mechanisms.  This  implies  compliance  costs  for  Member  States.  However,  they 
could  rely  in  most  cases  on  existing  structures,  which  would  limit  the  costs.  The  teaching 
exception can also entail some costs for Member States linked to the measures ensuring the 
availability and visibility of licences for educational establishments. 

New  technological  developments  have  been  carefully  examined.  The  proposal  includes 
several  exceptions  that  aim  at  facilitating  the  use  of  copyright-protected  content  via  new 
technologies.  This  proposal  also  includes  measures  to  facilitate  access  to  content,  including 
via digital networks. Finally, it ensures a balanced bargaining position between all actors in 
the digital environment. 

• 

Fundamental rights 

By improving the bargaining position of authors and performers and the control rightholders 
have on the use of their copyright-protected content, the proposal will have a positive impact 
on  copyright  as  a  property  right,  protected  under  Article  17  of  the  Charter  of  Fundamental 
Rights of the European Union (‘the Charter’). This positive impact will be reinforced by the 
measures  to  improve  licensing  practices,  and  ultimately  rightholders'  revenues.  New 
exceptions that reduce to some extent the rightholders' monopoly are justified by other public 
interest  objectives.  These  exceptions  are  likely  to  have  a  positive  impact  on  the  right  to 
education and on cultural diversity. Finally, the Directive has a limited impact on the freedom 
to  conduct  a  business  and  on  the  freedom  of  expression  and  information,  as  recognised 
respectively by Articles 16 and 11 of the Charter, due to the mitigation measures put in place 
and a balanced approach to the obligations set on the relevant stakeholders. 

4. 

BUDGETARY IMPLICATIONS 

The proposal has no impact on the European Union budget. 

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5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

In  accordance  with  Article  22  the  Commission  shall  carry  out  a  review  of  the  Directive  no 
sooner than [five] years after the date of [transposition]. 

• 

Explanatory documents 

In compliance with recital 48 of the proposal, Member States will notify the Commission of 
their  transposition  measures  with  explanatory  documents.  This  is  necessary  given  the 
complexity  of  rules  laid  down  by  the  proposal  and  the  importance  to  keep  a  harmonised 
approach of rules applicable to the digital and cross-border environment. 

• 

Detailed explanation of the specific provisions of the proposal 

The first title contains general provisions which (i) specify the subject-matter and the scope of 
the Directive and (ii) provide definitions that will need to be interpreted in a uniform manner 
in the Union. 

The  second  title  concerns  measures  to  adapt  exceptions  and  limitations  to  the  digital  and 
cross-border  environment.  This  title  includes  three  articles  which  require  Member  States  to 
provide for mandatory exceptions or a limitation allowing (i) text and data mining carried out 
by research organisations for the purposes of scientific research (Article 3); (ii) digital uses of 
works and other subject-matter for the sole purpose of illustration for teaching (Article 4) and 
(iii)  cultural  heritage  institutions  to  make  copies  of  works  and  other  subject-matter  that  are 
permanently  in  their  collections  to  the  extent  necessary  for  their  preservation  (Article  5). 
Article 6 provides for common provisions to the title on exceptions and limitations. 

The  third  title  concerns measures  to  improve  licensing  practices and  ensure  wider  access  to 
content.  Article  7  requires  Member  States  to  put  in  place  a  legal  mechanism  to  facilitate 
licensing  agreements  of  out-of-commerce  works  and  other  subject-matter.  Article  8 
guarantees  the  cross-border  effect  of  such  licensing  agreements.  Article  9  requires  Member 
States to put in place a stakeholder dialogue on issues relating to Articles 7 and 8. Article 10 
creates an obligation for Member States to put in place a negotiation mechanism to facilitate 
negotiations on the online exploitation of audiovisual works. 

The  fourth  title  concerns  measures  to  achieve  a well-functioning  marketplace  for  copyright. 
Articles  11  and  12  (i)  extend  the  rights  provided  for  in  Articles  2  and  3(2)  of  Directive 
2001/29/EC to publishers of press publications for the digital use of their publications and (ii) 
provide for the option for Member States to provide all publishers with the possibility to claim 
a  share  in  the  compensation  for  uses  made  under  an  exception.  Article  13  creates  an 
obligation on information society service providers storing and giving access to large amounts 
of  works  and  other  subject-matter  uploaded  by  their  users  to  take  appropriate  and 
proportionate measures to ensure the functioning of agreements concluded with rightholders 
and  to  prevent  the  availability  on  their  services  of  content  identified  by  rightholders  in 
cooperation  with  the  service  providers.  Article  14  requires  Member  States  to  include 
transparency obligations to the benefit of authors and performers. Article 15 requires Member 
States to establish a contract adjustment mechanism, in support of the obligation provided for 
in Article 14. Article 16 requires Member States to set up a dispute resolution mechanism for 
issues arising from the application of Articles 14 and 15. 

EN 

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The fifth title contains final provisions on amendments to other directives, the application in 
time, transitional provisions, the protection of personal data, the transposition, the review and 
the entry into force. 

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2016/0280 (COD) 

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 
Article 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 Committee24, 
Having regard to the opinion of the Committee of the Regions25, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

The Treaty provides for the establishment of an internal market and the institution of a 
system 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 to the achievement of those objectives. 

The  directives  which  have  been  adopted  in  the  area  of  copyright  and  related  rights 
provide for a high level of protection for rightholders 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. The protection provided by this legal framework also 
contributes  to  the  Union's  objective  of  respecting  and  promoting  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. 

Rapid  technological  developments  continue  to  transform  the  way  works  and  other 
subject-matter are created, produced, distributed and exploited. New business models 
and new actors continue to emerge. The objectives and the principles laid down by the 
Union  copyright  framework  remain  sound.  However,  legal  uncertainty  remains,  for 
both  rightholders  and  users,  as  regards  certain  uses,  including  cross-border  uses,  of 
works  and  other  subject-matter  in  the  digital  environment.  As  set  out  in  the 
Communication  of  the  Commission  entitled  ‘Towards  a  modern,  more  European 

24 
25 

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

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(4) 

(5) 

copyright  framework’26,  in  some  areas  it  is  necessary  to  adapt  and  supplement  the 
current Union copyright framework. This Directive provides for rules to adapt certain 
exceptions  and  limitations  to  digital  and  cross-border  environments,  as  well  as 
measures to facilitate certain licensing practices as regards the dissemination of out-of-
commerce works and the online availability of audiovisual works on video-on-demand 
platforms with a view to ensuring wider access to content. In order to achieve a well-
functioning  marketplace  for  copyright,  there  should  also  be  rules  on  rights  in 
publications, on the use of works and other subject-matter by online service providers 
storing and giving access to user uploaded content and on the transparency of authors' 
and performers' contracts. 

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 
Parliament  and  of  the  Council27,  Directive  2001/29/EC  of  the  European  Parliament 
and  of  the  Council28,  Directive  2006/115/EC  of  the  European  Parliament  and  of  the 
Council29,  Directive  2009/24/EC  of  the  European  Parliament  and  of  the  Council30, 
Directive 2012/28/EU of the European Parliament and of the Council31 and Directive 
2014/26/EU of the European Parliament and of the Council32. 

In  the  fields  of  research,  education  and  preservation  of  cultural  heritage,  digital 
technologies  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  scientific  research,  teaching  and 
preservation  of  cultural  heritage  should  be  reassessed  in  the  light  of  those  new  uses. 
Mandatory exceptions or limitations for uses of text and data mining technologies in 
the field of scientific research, illustration for teaching in the digital environment and 
for preservation of cultural heritage should be introduced. For uses not covered by the 
exceptions  or  the  limitation  provided  for  in  this  Directive,  the  exceptions  and 
limitations  existing  in  Union  law  should  continue  to  apply.  Directives  96/9/EC  and 
2001/29/EC should be adapted. 

(6) 

The  exceptions  and  the  limitation  set  out  in  this  Directive  seek  to  achieve  a  fair 
balance between the rights and interests of authors and other rightholders on the one 
hand,  and  of  users  on  the  other.  They  can  be  applied  only  in  certain  special  cases 

26 
27 

28 

29 

30 

31 

32 

COM(2015) 626 final. 
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  2001/29/EC  of  the  European  Parliament  and  of  the  Council  of  22  May  2001  on  the 
harmonisation of certain aspects of copyright and related rights in the information society (OJ L 167, 
22.6.2001, p. 10–19). 
Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental 
right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 
L 376, 27.12.2006, p. 28–35). 
Directive  2009/24/EC  of  the  European  Parliament  and  of  the  Council  of  23  April  2009  on  the  legal 
protection of computer programs (OJ L 111, 5.5.2009, p. 16–22). 
Directive  2012/28/EU  of  the  European  Parliament  and  of  the  Council  of  25  October  2012  on  certain 
permitted uses of orphan works (OJ L 299, 27.10.2012, p. 5–12). 
Directive 2014/26/EU of the European Parliament and of the Council of 26 February 2014 on collective 
management of copyright 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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(7) 

(8) 

(9) 

which do not conflict with the normal exploitation of the works or other subject-matter 
and do not unreasonably prejudice the legitimate interests of the rightholders. 

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 the limitation established in this Directive, which are 
particularly  relevant  in  the  online  environment.  Rightholders  should  have  the 
opportunity  to  ensure  this  through  voluntary  measures.  They  should  remain  free  to 
choose the format and the modalities to provide the beneficiaries of the exceptions and 
the  limitation  established  in  this  Directive  with  the  means  to  benefit  from  them 
provided  that  such  means  are  appropriate.  In  the  absence  of  voluntary  measures, 
Member  States  should  take  appropriate  measures  in  accordance  with  the  first 
subparagraph of Article 6(4) of Directive 2001/29/EC. 

the  digital  economy, 

New  technologies  enable  the  automated  computational  analysis  of  information  in 
digital  form,  such  as  text,  sounds,  images  or  data,  generally  known  as  text  and  data 
mining. Those technologies allow researchers to process large amounts of information 
to  gain  new  knowledge  and  discover  new  trends.  Whilst  text  and  data  mining 
is  widespread 
technologies  are  prevalent  across 
acknowledgment  that  text  and  data  mining  can  in  particular  benefit  the  research 
community  and  in  so  doing  encourage  innovation.  However,  in  the  Union,  research 
organisations  such  as  universities  and  research  institutes  are  confronted  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  by  copyright 
and/or  by  the  sui  generis  database  right,  notably  the  reproduction  of  works  or  other 
subject-matter  and/or  the  extraction  of  contents  from  a  database.  Where  there  is  no 
exception  or  limitation  which  applies,  an  authorisation  to  undertake  such  acts  would 
be required from rightholders. Text and data mining may also be carried out in relation 
to  mere  facts  or  data  which  are  not  protected  by  copyright  and  in  such  instances  no 
authorisation would be required. 

there 

Union  law  already  provides  certain  exceptions  and  limitations  covering  uses  for 
scientific  research  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 in scientific 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  of  digital  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 to 
the  right  of  reproduction  and  also  to  the  right  to  prevent  extraction  from  a  database. 
The new exception should be without prejudice to the existing mandatory exception on 
temporary acts of reproduction laid down in Article 5(1) of Directive 2001/29, which 
should continue to apply to text and data mining techniques which do not involve the 
making  of  copies  going  beyond  the  scope  of  that  exception.  Research  organisations 
should  also  benefit  from  the  exception  when  they  engage  into  public-private 
partnerships. 

EN 

14 

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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. Due to the diversity of such entities, it is important 
to  have  a  common  understanding  of  the  beneficiaries  of  the  exception.  Despite 
different  legal  forms  and  structures,  research  organisations  across  Member  States 
generally have in common that they act either on a not for profit basis or in the context 
of  a  public-interest  mission  recognised  by  the  State.  Such  a  public-interest  mission 
may,  for  example,  be  reflected  through  public  funding  or  through  provisions  in 
national  laws  or  public  contracts.  At  the  same  time,  organisations  upon  which 
commercial undertakings have a decisive 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  the  results  of  the  research,  should  not  be 
considered research organisations for the purposes of this Directive. 

(12) 

In  view  of  a  potentially  high  number  of  access  requests  to  and  downloads  of  their 
works or other subject-matter, rightholders should be allowed to apply measures where 
there is risk that the security and integrity of the system or databases where the works 
or  other  subject-matter  are  hosted  would  be  jeopardised.  Those  measures  should  not 
exceed what is necessary to pursue the objective of ensuring the security and integrity 
of the system and should not undermine the effective application of the exception. 

(13)  There  is  no  need  to  provide  for  compensation for  rightholders  as  regards  uses  under 
the text and data mining exception introduced by this Directive given that in view of 
the nature and scope of the exception the harm should be minimal. 

(14)  Article  5(3)(a)  of  Directive  2001/29/EC  allows  Member  States  to  introduce  an 
exception or limitation to the rights of reproduction, communication to the public and  
making available to  the public for the sole purpose  of, among others, illustration  for 
teaching. In addition, Articles 6(2)(b) and 9(b) of Directive 96/9/EC permit the use of 
a database and the extraction or  re-utilization 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 
thereby at a distance. Moreover, the existing framework does not provide for a cross-
border  effect.  This  situation  may  hamper  the  development  of  digitally-supported 
teaching  activities  and  distance  learning.  Therefore,  the  introduction  of  a  new 
mandatory  exception  or 
that  educational 
establishments  benefit  from  full  legal  certainty  when  using  works  or  other  subject-
matter in digital teaching activities, including online and across borders. 

is  necessary 

to  ensure 

limitation 

(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 
education  levels,  in  particular  to  improve  and  enrich  the  learning  experience.  The 
exception  or  limitation  provided  for  in  this  Directive  should  therefore  benefit  all 
educational establishments in primary, secondary, vocational and higher education to 
the  extent  they  pursue  their  educational  activity  for  a  non-commercial  purpose.  The 
organisational structure and the means of funding of an educational establishment are 
not the decisive factors to determine the non-commercial nature of the activity. 

(16)  The exception or limitation should cover digital uses of works and other subject-matter 
such  as  the  use  of  parts  or  extracts  of  works  to  support,  enrich  or  complement  the 
teaching,  including  the  related  learning  activities.  The  use  of  the  works  or  other 
subject-matter  under  the  exception  or  limitation  should  be  only  in  the  context  of 

EN 

15 

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teaching  and  learning  activities  carried  out  under  the  responsibility  of  educational 
establishments, including during examinations, and be limited to what is necessary for 
the  purpose  of  such  activities.  The  exception  or  limitation  should  cover  both  uses 
through  digital  means  in  the  classroom  and  online  uses  through  the  educational 
establishment's  secure  electronic  network,  the  access  to  which  should  be  protected, 
notably  by  authentication  procedures.  The  exception  or  limitation  should  be 
understood as covering the specific accessibility needs of persons with a disability in 
the context of illustration for teaching. 

(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 
subject-matter. Such arrangements have usually been developed taking account of the 
needs  of  educational  establishments  and  different  levels  of  education.  Whereas  it  is 
essential  to  harmonise  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. 
This should allow Member States to build on the existing arrangements concluded at 
national level. In particular, Member States could decide to subject the application of 
the exception or limitation, fully or partially, to the availability of adequate licences, 
covering at least the same uses as those allowed under the exception. This mechanism 
would,  for  example,  allow  giving  precedence  to  licences  for  materials  which  are 
primarily intended for the educational market. In order to avoid that such mechanism 
results  in  legal  uncertainty  or  administrative  burden  for  educational  establishments, 
Member  States  adopting  this  approach  should  take  concrete  measures  to  ensure  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. 

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

(19)  Different approaches in the Member States for acts of preservation by cultural heritage 
institutions hamper cross-border cooperation and the sharing of means of preservation 
by cultural heritage institutions in the internal market, leading to an inefficient use of 
resources. 

(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  their  collections  for  preservation  purposes,  for  example  to  address  technological 
obsolescence or the degradation of original supports. Such an exception should allow 
for the making of copies by the appropriate preservation tool, means or technology, in 
the required number and at any point in the life of a work or other subject-matter to the 
extent required in order to produce a copy for preservation purposes only. 

EN 

16 

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(21)  For  the  purposes  of  this  Directive,  works  and  other  subject-matter  should  be 
considered to be permanently in the collection of a cultural heritage institution when 
copies are owned or permanently held by the cultural heritage institution, for example 
as a result of a transfer of ownership or licence agreements. 

(22)  Cultural heritage institutions should benefit from a clear framework for the digitisation 
and  dissemination,  including  across  borders,  of  out-of-commerce  works  or  other 
subject-matter.  However,  the  particular  characteristics  of  the  collections  of  out-of-
commerce works mean that obtaining the prior consent of the individual rightholders 
may be very difficult. This can be due, for example, to the age of the works or other 
subject-matter,  their  limited  commercial  value  or  the  fact  that  they  were  never 
intended  for  commercial  use.  It  is  therefore  necessary  to  provide  for  measures  to 
facilitate the licensing of rights in out-of-commerce works that are in the collections of 
cultural  heritage  institutions  and  thereby  to  allow  the  conclusion  of  agreements  with 
cross-border effect in the internal market. 

(23)  Member  States  should,  within  the  framework  provided  for  in  this  Directive,  have 
flexibility in choosing the specific type of mechanism allowing for licences for out-of-
commerce works to extend to the rights of rightholders that are not represented by the 
collective  management  organisation,  in  accordance  to  their  legal  traditions,  practices 
or  circumstances.  Such  mechanisms  can  include  extended  collective  licensing  and 
presumptions of representation. 

(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.  Additional  appropriate  safeguards  should  be 
available  for  all  rightholders,  who  should  be  given  the  opportunity  to  exclude  the 
application  of  such  mechanisms  to  their  works  or  other  subject-matter.  Conditions 
attached  to  those  mechanisms  should  not  affect  their  practical  relevance  for  cultural 
heritage institutions. 

(25)  Considering the variety of works and other subject-matter in the collections of cultural 
heritage institutions, it is important that the  licensing mechanisms  introduced by this 
Directive  are  available  and  can  be  used  in  practice  for  different  types  of  works  and 
other subject-matter, including photographs, sound recordings and audiovisual works. 
In order to reflect the specificities of different categories of works and other subject-
matter as regards modes of publication and distribution and to facilitate the usability of 
those  mechanisms,  specific  requirements  and  procedures  may  have  to  be  established 
by  Member  States  for  the  practical  application  of  those  licensing  mechanisms.  It  is 
appropriate that Member States consult rightholders, users and collective management 
organisations when doing so. 

(26)  For reasons of international comity, the licensing mechanisms for the digitisation and 
dissemination  of  out-of-commerce  works  provided  for  in  this  Directive  should  not 
apply  to  works  or  other  subject-matter  that  are  first  published  or,  in  the  absence  of 
publication,  first  broadcast  in  a  third  country  or,  in  the  case  of  cinematographic  or 
audiovisual  works,  to  works  the  producer  of  which  has  his  headquarters  or  habitual 
residence  in  a  third  country.  Those  mechanisms  should  also  not  apply  to  works  or 
other subject-matter of third country nationals except when they are first published or, 
in the absence of publication, first broadcast in the territory of a Member State or, in 

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

(27)  As  mass  digitisation  projects  can  entail  significant  investments  by  cultural  heritage 
institutions, any licences granted under the mechanisms provided for in this Directive 
should  not  prevent  them  from  generating  reasonable  revenues  in  order  to  cover  the 
costs of the licence and the costs of digitising and disseminating the works and other 
subject-matter covered by the licence. 

(28) 

Information regarding the future and ongoing use of out-of-commerce works and other 
subject-matter  by  cultural  heritage  institutions  on  the  basis  of  the  licensing 
mechanisms  provided  for  in  this  Directive  and  the  arrangements  in  place  for  all 
rightholders  to  exclude  the  application  of  licences  to  their  works  or  other  subject-
matter should be adequately publicised. This is particularly important when uses take 
place  across  borders  in  the  internal  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 cross-border use takes place. Under Regulation (EU) No 386/2012 of the European 
Parliament  and  of  the  Council33,  the  European  Union  Intellectual  Property  Office  is 
entrusted  with  certain  tasks  and  activities,  financed  by  making  use  of  its  own 
budgetary  measures,  aiming  at  facilitating  and  supporting  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. 

(29)  On-demand services have the potential to play a decisive role in the dissemination of 
European  works  across  the  European  Union.  However,  agreements  on  the  online 
exploitation of such works may face difficulties related to the licensing of rights. Such 
issues may, for instance, appear when the holder of the rights for a given territory is 
not interested in the online exploitation of the work or where there are issues linked to 
the windows of exploitation. 

(30)  To  facilitate  the  licensing  of  rights  in  audiovisual  works  to  video-on-demand 
platforms,  this  Directive  requires  Member  States  to  set  up  a  negotiation  mechanism 
allowing  parties  willing  to  conclude  an  agreement  to  rely  on  the  assistance  of  an 
impartial body. The body should meet with the parties and help with the negotiations 
by  providing  professional  and  external  advice.  Against  that  background,  Member 
States  should  decide  on  the  conditions  of  the  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  that  administrative  and  financial 
burdens remain proportionate to guarantee the efficiency of the negotiation forum. 

(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. In the transition from print to digital, publishers 
of  press  publications  are  facing  problems  in  licensing  the  online  use  of  their 
publications  and  recouping  their  investments.  In  the  absence  of  recognition  of 

33 

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  and 
private-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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18 

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publishers  of  press  publications  as  rightholders,  licensing  and  enforcement  in  the 
digital environment is often complex and inefficient. 

(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  publishing  industry.  It  is  therefore  necessary  to  provide  at  Union  level  a 
harmonised  legal  protection  for  press  publications  in  respect  of  digital  uses.  Such 
protection should be effectively guaranteed through the introduction, in Union law, of 
rights related to copyright for the reproduction and making available to the public of 
press publications in respect of digital uses. 

(33)  For  the  purposes  of  this  Directive,  it  is  necessary  to  define  the  concept  of  press 
publication  in  a  way  that  embraces  only  journalistic  publications,  published  by  a 
service  provider,  periodically  or  regularly  updated  in  any  media,  for  the  purpose  of 
informing  or  entertaining.  Such  publications  would  include,  for  instance,  daily 
newspapers,  weekly  or  monthly  magazines  of  general  or  special  interest  and  news 
websites.  Periodical  publications  which  are  published  for  scientific  or  academic 
purposes, such as scientific journals, should not be covered by the protection granted 
to  press  publications  under  this  Directive.  This  protection  does  not  extend  to  acts  of 
hyperlinking which do not constitute communication to the public. 

(34)  The rights granted to the publishers of press publications under this Directive should 
have the same scope as the rights of reproduction and making available to the public 
provided  for  in  Directive  2001/29/EC,  insofar  as  digital  uses  are  concerned.  They 
should  also be  subject to  the  same  provisions  on  exceptions  and  limitations  as  those 
applicable to the rights provided for in Directive 2001/29/EC including the exception 
on quotation for purposes such as criticism or review laid down in Article 5(3)(d) of 
that Directive. 

(35)  The protection granted to publishers of press publications under this Directive should 
not  affect  the  rights  of  the  authors  and  other  rightholders  in  the  works  and  other 
subject-matter  incorporated  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  in  which  they  are  incorporated.  Therefore,  publishers  of 
press publications should not be able to invoke the protection granted to them against 
authors and other rightholders. 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. 

(36)  Publishers,  including  those  of  press  publications,  books  or  scientific  publications, 
often  operate  on  the  basis  of  the  transfer  of  authors'  rights  by  means  of  contractual 
agreements  or  statutory  provisions.  In  this  context,  publishers  make  an  investment 
with a view to the exploitation of the works contained in their publications and may in 
some instances be deprived of revenues where such works are used under exceptions 
or  limitations  such  as  the  ones  for  private  copying  and  reprography.  In  a  number  of 
Member  States  compensation  for  uses  under  those  exceptions  is  shared  between 
authors  and  publishers.  In  order  to  take  account  of  this  situation  and  improve  legal 
certainty for all concerned parties, Member States should be allowed to determine that, 
when  an  author  has  transferred  or  licensed  his  rights  to  a  publisher  or  otherwise 
contributes  with  his  works  to  a  publication  and  there  are  systems  in  place  to 
compensate for the harm caused by an exception or limitation, publishers are entitled 
to  claim  a  share  of  such  compensation,  whereas  the  burden  on  the  publisher  to 
substantiate his claim should not exceed what is required under the system in place. 

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19 

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(37)  Over  the  last  years,  the  functioning  of  the  online  content  marketplace  has  gained  in 
complexity. Online services providing access to copyright protected content uploaded 
by  their  users  without  the  involvement  of  right  holders  have  flourished  and  have 
become  main  sources  of  access  to  content  online.  This  affects  rightholders' 
possibilities to  determine whether, and under which conditions, their work and other 
subject-matter are used as well as their possibilities to get an appropriate remuneration 
for it. 

(38)  Where information society service providers store and provide access to the public to 
copyright  protected  works  or  other  subject-matter  uploaded  by  their  users,  thereby 
going  beyond  the  mere  provision  of  physical  facilities  and  performing  an  act  of 
communication to the public, they are obliged to conclude licensing agreements with 
rightholders, unless they are eligible for the liability exemption provided in Article 14 
of Directive 2000/31/EC of the European Parliament and of the Council34. 

In respect of Article 14, it is necessary to verify whether the service provider plays an 
active role, including by optimising the presentation of the uploaded works or subject-
matter or promoting them, irrespective of the nature of the means used therefor. 

In  order  to  ensure  the  functioning  of  any  licensing  agreement,  information  society 
service  providers  storing  and  providing  access  to  the  public  to  large  amounts  of 
copyright protected works or other subject-matter uploaded by their users should take 
appropriate and proportionate measures to ensure protection of works or other subject-
matter, such as implementing effective technologies. This obligation should also apply 
when the information society service providers are eligible for the liability exemption 
provided in Article 14 of Directive 2000/31/EC. 

(39)  Collaboration  between  information  society  service  providers  storing  and  providing 
access  to  the  public  to  large  amounts  of  copyright  protected  works  or  other  subject-
matter  uploaded  by  their  users  and  rightholders  is  essential  for  the  functioning  of 
technologies,  such  as  content  recognition  technologies.  In  such  cases,  rightholders 
should provide the necessary data to allow the services to identify their content and the 
services  should  be  transparent  towards  rightholders  with  regard  to  the  deployed 
technologies, to allow the assessment of their appropriateness. The services should in 
particular provide rightholders with information on the type of technologies used, the 
way  they  are  operated  and  their  success  rate  for  the  recognition  of  rightholders' 
content. Those technologies should also allow rightholders to get information from the 
information  society  service  providers  on  the  use  of  their  content  covered  by  an 
agreement. 

(40)  Certain  rightholders  such  as  authors  and  performers  need  information  to  assess  the 
economic  value  of  their  rights  which  are  harmonised  under  Union  law.  This  is 
especially  the  case  where  such  rightholders  grant  a  licence  or  a  transfer  of  rights  in 
return for remuneration. 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,  but  they  often  face  a  lack  of  transparency. 
Therefore,  the  sharing  of  adequate  information  by  their  contractual  counterparts  or 
their successors in title is important for the transparency and balance in the system that 
governs the remuneration of authors and performers. 

34 

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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20 

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(41)  When  implementing  transparency  obligations,  the  specificities  of  different  content 
sectors  and  of  the  rights  of  the  authors  and  performers  in  each  sector  should  be 
considered. Member States should consult all relevant stakeholders as that should help 
determine sector-specific requirements. Collective bargaining should be considered as 
an  option  to  reach  an  agreement  between  the  relevant  stakeholders  regarding 
transparency.  To  enable  the  adaptation  of  current  reporting  practices  to  the 
transparency  obligations,  a 
transitional  period  should  be  provided  for.  The 
transparency obligations do not need to apply to agreements concluded with collective 
management  organisations  as  those  are  already  subject  to  transparency  obligations 
under Directive 2014/26/EU. 

(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 
their contractual counterparts or their successors in title. Therefore, without prejudice 
to  the  law  applicable  to  contracts  in  Member  States,  there  should  be  a  remuneration 
adjustment  mechanism  for  cases  where  the  remuneration  originally  agreed  under  a 
licence  or  a  transfer  of  rights  is  disproportionately  low  compared  to  the  relevant 
revenues and the benefits derived from the exploitation of the work or the fixation of 
the performance, including in light of the transparency ensured by this Directive. The 
assessment of the situation should take account of the specific circumstances of each 
case as well as of the specificities and practices of the different content sectors. 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. 

(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  related  to 
obligations of transparency and the contract adjustment mechanism. 

(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  accordance  with  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 
in  particular  by  the  Charter  of  Fundamental  Rights  of  the  European  Union. 
Accordingly, this Directive should be interpreted and applied in accordance with those 
rights and principles. 

(46)  Any  processing  of  personal  data  under  this  Directive  should  respect  fundamental 
rights,  including  the  right  to  respect  for  private  and  family  life  and  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 Directive 95/46/EC of 
the  European  Parliament  and  of  the  Council35  and  Directive  2002/58/EC  of  the 
European Parliament and of the Council36. 

35 

Directive  95/46/EC  of  the  European  Parliament  and  of  the  Council  of  24  October  1995  on  the 
protection of  individuals with  regard  to  the  processing of  personal  data and on  the free  movement  of 

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(47) 

In  accordance  with  the Joint  Political  Declaration  of  28  September  2011  of  Member 
States  and  the  Commission  on  explanatory  documents37,  Member  States  have 
undertaken  to  accompany,  in  justified  cases,  the  notification  of  their  transposition 
measures  with  one  or  more  documents  explaining  the  relationship  between  the 
components  of  a  directive  and  the  corresponding  parts  of  national  transposition 
instruments. With regard to this Directive, the legislator considers the transmission of 
such documents to be justified, 

HAVE ADOPTED THIS DIRECTIVE: 

such data (OJ L 281, 23.11.1995, p. 31–50). This Directive is repealed with effect from 25 May 2018 
and shall be replaced by Regulation (EU) 2016/679 of the European Parliament and of the Council of 
27 April 2016 on the protection of natural persons with regard to the processing of personal data and on 
the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) 
(OJ L 119, 4.5.2016, p. 1–88). 
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 “e-Privacy Directive”. 
OJ C 369, 17.12.2011, p. 14. 

36 

37 

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22 

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TITLE I 
GENERAL PROVISIONS 

Article 1 
Subject matter and scope 

1. 

2. 

This  Directive  lays  down  rules  which  aim  at  further  harmonising  the  Union  law 
applicable  to  copyright  and  related  rights  in  the  framework  of  the  internal  market, 
taking into account in particular 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 a well-functioning marketplace for the exploitation 
of works and other subject-matter. 

Except in the cases referred to in Article 6, this Directive shall leave intact and shall 
in no way affect existing rules laid down in the Directives currently in force in this 
area,  in  particular  Directives  96/9/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,  a  research  institute  or  any  other 
organisation the primary goal of which is to conduct scientific research or to conduct 
scientific research and provide educational services: 

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

research; or 

(2) 

(3) 

(4) 

(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 
be enjoyed on a preferential basis by an undertaking exercising a decisive influence 
upon such organisation; 

‘text and data mining’ means any automated analytical technique aiming to analyse 
text and data in digital form in order to generate information such as patterns, trends 
and correlations; 

‘cultural  heritage  institution’  means  a  publicly  accessible  library  or  museum,  an 
archive or a film or audio heritage institution; 

‘press publication’ means a fixation of a collection of literary works of a journalistic 
nature,  which  may  also  comprise  other  works  or  subject-matter  and  constitutes  an 
individual  item  within  a  periodical  or  regularly-updated  publication  under  a  single 
title, such  as  a  newspaper  or  a  general  or  special  interest  magazine, having  the 
purpose of providing information related to news or other topics and published in any 
media under the initiative, editorial responsibility and control of a service provider. 

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TITLE II 
MEASURES TO ADAPT EXCEPTIONS AND LIMITATIONS TO THE 
DIGITAL AND CROSS-BORDER ENVIRONMENT 

Article 3 
Text and data mining 

1. 

2. 

3. 

4. 

1. 

2. 

3. 

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  and  Article 
11(1)  of  this  Directive  for  reproductions  and  extractions  made  by  research 
organisations  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. 

Any contractual provision contrary to the exception provided for in paragraph 1 shall 
be unenforceable. 

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. 

Member  States  shall  encourage  rightholders  and  research  organisations  to  define 
commonly-agreed best practices concerning the application of the measures referred 
to in paragraph 3. 

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

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)  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  to  allow  for  the  digital  use  of  works  and  other  subject-matter  for  the  sole 
purpose  of  illustration  for  teaching,  to  the  extent  justified  by  the  non-commercial 
purpose to be achieved, provided that the use: 

(a) 

takes place on the premises of an educational establishment or through a secure 
electronic network accessible only by the educational establishment's pupils or 
students and teaching staff; 

(b) 

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

Member States may provide that the exception adopted pursuant to paragraph 1 does 
not apply generally or as regards specific types of works or other subject-matter, to 
the  extent  that  adequate  licences  authorising  the  acts  described  in  paragraph  1  are 
easily available in the market. 

Member  States  availing  themselves  of  the  provision  of  the  first  subparagraph  shall 
take  the  necessary  measures  to  ensure  appropriate  availability  and  visibility  of  the 
licences authorising the acts described in paragraph 1 for educational establishments. 

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

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4. 

Member  States  may  provide  for  fair  compensation  for  the  harm  incurred  by  the 
rightholders  due  to  the  use  of  their  works  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 the sole purpose of the preservation of such works 
or other subject-matter and to the extent necessary for such preservation. 

Article 6 
Common provisions 

Article  5(5)  and  the  first,  third  and  fifth  subparagraphs  of  Article  6(4)  of  Directive 
2001/29/EC shall apply to the exceptions and the limitation provided for under this Title. 

EN 

25 

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TITLE III 
MEASURES TO IMPROVE LICENSING PRACTICES AND ENSURE 
WIDER ACCESS TO CONTENT 

CHAPTER 1 
Out-of-commerce works 

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

Member  States  shall  provide  that  when  a  collective  management  organisation,  on 
behalf  of  its  members,  concludes  a  non-exclusive  licence  for  non-commercial 
purposes  with  a  cultural  heritage  institution  for  the  digitisation,  distribution, 
communication to the public or making available of out-of-commerce works or other 
subject-matter permanently in the collection of the institution, such a non-exclusive 
licence may be extended or presumed to apply to rightholders of the same category 
as  those  covered  by  the  licence  who  are  not  represented  by  the  collective 
management organisation, provided that: 

(a) 

(b) 

(c) 

the  collective  management  organisation  is,  on  the  basis  of  mandates  from 
rightholders, broadly representative of rightholders in the category of works or 
other subject-matter and of the rights which are the subject of the licence; 

equal treatment is guaranteed to all rightholders in relation to the terms of the 
licence; 

all  rightholders  may  at  any  time  object  to  their  works  or  other  subject-matter 
being deemed to be out of commerce and exclude the application of the licence 
to their works or other subject-matter. 

A  work  or  other  subject-matter  shall  be  deemed  to  be  out  of  commerce  when  the 
translations,  versions  and 
whole  work  or  other  subject-matter, 
manifestations,  is  not  available  to  the  public  through  customary  channels  of 
commerce and cannot be reasonably expected to become so.  

in  all 

its 

1. 

2. 

Member  States  shall,  in  consultation  with  rightholders,  collective  management 
organisations and cultural heritage institutions, ensure that the requirements used to 
determine  whether  works  and  other  subject-matter  can  be  licensed  in  accordance 
with paragraph 1 do not extend beyond what is necessary and reasonable and do not 
preclude the possibility to determine the out-of-commerce status of a collection as a 
whole, when it is reasonable to presume that all works or other subject-matter in the 
collection are out of commerce. 

3. 

Member States shall provide that appropriate publicity measures are taken regarding: 

(a) 

(b) 

(c) 

the deeming of works or other subject-matter as out of commerce; 

the licence, and in particular its application to unrepresented rightholders; 

the possibility of rightholders to object, referred to in point (c) of paragraph 1; 

including during a reasonable period of time before the works or other subject-matter 
are digitised, distributed, communicated to the public or made available. 

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26 

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4. 

Member  States  shall  ensure  that  the  licences  referred  to  in  paragraph  1  are  sought 
from  a  collective  management  organisation  that  is  representative  for  the  Member 
State where: 

(a) 

(b) 

(c) 

the works or phonograms were first published or, in the absence of publication, 
where  they  were  first  broadcast,  except  for  cinematographic  and  audiovisual 
works; 

the  producers  of  the  works  have  their  headquarters  or  habitual  residence,  for 
cinematographic and audiovisual works; or 

the cultural heritage institution is established, when a Member State or a third 
country  could  not  be determined, after  reasonable efforts, according to points 
(a) and (b). 

Paragraphs  1,  2  and  3  shall  not  apply  to  the  works  or  other  subject-matter  of  third 
country nationals except where points (a) and (b) of paragraph 4 apply. 

Article 8 
Cross-border uses 

Works  or  other  subject-matter  covered  by  a  licence  granted  in  accordance  with 
Article  7  may  be  used  by  the  cultural  heritage  institution  in  accordance  with  the 
terms of the licence in all Member States. 

Member  States  shall  ensure  that  information  that  allows  the  identification  of  the 
works  or  other  subject-matter  covered  by  a  licence  granted  in  accordance  with 
Article 7 and information about the possibility of rightholders to object referred to in 
Article 7(1)(c) are made publicly accessible in a single online portal for at least six 
months  before  the  works  or  other  subject-matter  are  digitised,  distributed, 
communicated to the public or made available in Member States other than the one 
where the licence is granted, and for the whole duration of the licence. 

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

Article 9 
Stakeholder dialogue 

5. 

1. 

2. 

3. 

Member States shall ensure a regular dialogue between representative users' and rightholders' 
organisations, and any other relevant stakeholder organisations, to, on a sector-specific basis, 
foster  the  relevance  and  usability  of  the  licensing  mechanisms  referred  to  in  Article  7(1), 
ensure the effectiveness of the safeguards for rightholders referred to in this Chapter, notably 
as  regards  publicity  measures,  and,  where  applicable,  assist  in  the  establishment  of  the 
requirements referred to in the second subparagraph of Article 7(2). 

CHAPTER 2 
Access to and availability of audiovisual works on video-on-demand 
platforms 

Article 10 
Negotiation mechanism 

Member  States  shall  ensure  that  where  parties  wishing  to  conclude  an  agreement  for  the 
purpose  of  making  available  audiovisual  works  on  video-on-demand  platforms  face 
difficulties relating to the licensing of rights, they may rely on the assistance of an impartial 

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body with relevant experience. That body shall provide assistance with negotiation and help 
reach agreements. 

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

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TITLE IV 
MEASURES TO ACHIEVE A WELL-FUNCTIONING MARKETPLACE 
FOR COPYRIGHT 

CHAPTER 1 
Rights in publications 

Article 11 
Protection of press publications concerning digital uses 

1. 

2. 

3. 

4. 

Member States shall provide publishers of press publications with the rights provided 
for in Article 2 and Article 3(2) of Directive 2001/29/EC for the digital use of their 
press publications. 

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 other subject-matter incorporated in a press publication. Such rights 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 the press publication in which they are incorporated. 

Articles  5  to  8  of  Directive  2001/29/EC  and  Directive  2012/28/EU  shall  apply 
mutatis mutandis in respect of the rights referred to in paragraph 1. 

The rights referred to in paragraph 1 shall expire 20 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. 

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 
claim  a  share  of  the  compensation  for  the  uses  of  the  work  made  under  an  exception  or 
limitation to the transferred or licensed right. 

CHAPTER 2 
Certain uses of protected content by online services 

Article 13 
Use of protected content by information society service providers storing and giving access to 
large amounts of works and other subject-matter uploaded by their users 

1. 

Information  society  service  providers  that  store  and  provide  to  the  public  access  to 
large  amounts  of  works  or  other  subject-matter  uploaded  by  their  users  shall,  in 
cooperation with rightholders, take measures to ensure the functioning of agreements 
concluded with rightholders for the use of their works or other subject-matter or to 
prevent the availability on their services of works or other subject-matter identified 
by rightholders through the cooperation with the service providers. Those measures, 
such as the use of effective content recognition technologies, shall be appropriate and 
proportionate.  The  service  providers  shall  provide  rightholders  with  adequate 
information on the functioning and the deployment of the measures, as well as, when 

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2. 

3. 

1. 

2. 

3. 

4. 

relevant,  adequate  reporting  on  the  recognition  and  use  of  the  works  and  other 
subject-matter. 

Member States shall ensure that the service providers referred to in paragraph 1 put 
in  place  complaints  and  redress  mechanisms  that  are  available  to  users  in  case  of 
disputes over the application of the measures referred to in paragraph 1. 

Member  States  shall  facilitate,  where  appropriate,  the  cooperation  between  the 
information society service providers and rightholders through stakeholder dialogues 
to  define  best  practices,  such  as  appropriate  and  proportionate  content  recognition 
technologies,  taking  into  account,  among  others,  the  nature  of  the  services,  the 
availability  of  the  technologies  and  their  effectiveness  in  light  of  technological 
developments. 

CHAPTER 3 
Fair remuneration in contracts of authors and performers 

Article 14 
Transparency obligation 

Member  States  shall  ensure  that  authors  and  performers  receive  on  a  regular  basis 
and  taking  into  account  the  specificities  of  each  sector,  timely,  adequate  and 
sufficient  information  on  the  exploitation  of  their  works  and  performances  from 
those  to  whom  they  have  licensed  or  transferred  their  rights,  notably  as  regards 
modes of exploitation, revenues generated and remuneration due. 

The obligation in paragraph 1 shall be proportionate and effective and shall ensure an 
appropriate level of transparency in every sector. However, in those cases where the 
administrative  burden  resulting  from  the  obligation  would  be  disproportionate  in 
view  of  the  revenues  generated  by  the  exploitation  of  the  work  or  performance, 
Member States may adjust the obligation in paragraph 1, provided that the obligation 
remains effective and ensures an appropriate level of transparency. 

Member  States  may  decide  that the obligation in  paragraph  1  does  not apply  when 
the  contribution  of  the  author  or  performer  is  not  significant  having  regard  to  the 
overall work or performance. 

Paragraph 1 shall not be applicable to entities subject to the transparency obligations 
established by Directive 2014/26/EU. 

Article 15 
Contract adjustment mechanism 

Member  States  shall  ensure  that  authors  and  performers  are  entitled  to  request  additional, 
appropriate  remuneration  from  the  party  with  whom  they  entered  into  a  contract  for  the 
exploitation  of  the  rights  when  the  remuneration  originally  agreed  is  disproportionately  low 
compared  to  the  subsequent  relevant  revenues  and  benefits derived  from  the  exploitation  of 
the works or performances. 

Article 16 
Dispute resolution mechanism 

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. 

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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 
scientific research, as long as the source is indicated 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 [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 
scientific research, as long as the source is indicated 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 [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 or indirect economic or commercial advantage, without prejudice to 
the exceptions and the limitation provided for in Directive [this Directive];" 

(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 
long as 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 [this Directive];" 

(c) 

In Article 12(4), the following points are added: 

"(e) to examine the impact of the transposition of Directive [this Directive] on 
the  functioning  of  the  internal  market  and  to  highlight  any  transposition 
difficulties; 

(f)  to  facilitate  the  exchange  of  information  on  the  relevant  developments  in 
legislation and 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 [this 
Directive]." 

Article 18 
Application in time 

1. 

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

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2. 

3. 

The provisions of Article 11 shall also apply to press publications published before 
[the date mentioned in Article 21(1)]. 

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 
the transparency 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 
carried out in compliance with Directives 95/46/EC and 2002/58/EC. 

1. 

2. 

1. 

2. 

Article 21 
Transposition 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by  [12  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. 

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

Article 22 
Review 

No  sooner  than  [five  years  after  the  date  mentioned  in  Article  21(1)],  the 
Commission  shall  carry  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. 

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

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. 

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Article 24 
Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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