Source: EURLEX
Language: en
Format: md

**EUROPEAN UNION**

**THE EUROPEAN PARLIAMENT** **THE COUNCIL**

**Strasbourg, 17 April 2019**
**(OR. en)**

**2016/0280 (COD)**
**LEX 1916**

**PE-CONS 51/1/19**

**REV 1**

**PI 33**

**RECH 97**

**EDUC 71**

**COMPET 145**

**AUDIO 29**

**CULT 30**

**DIGIT 38**

**TELECOM 69**

**CODEC 439**

**DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**ON COPYRIGHT AND RELATED RIGHTS IN THE DIGITAL SINGLE MARKET**

**AND AMENDING DIRECTIVES 96/9/EC AND 2001/29/EC**

PE-CONS 51/1/19 REV 1

# **EN**

**DIRECTIVE (EU) 2019/…**

**OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**of 17 April 2019**

**on copyright and related rights in the Digital Single Market**

**and amending Directives 96/9/EC and 2001/29/EC**

**(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 53(1) and Articles 62 and 114 thereof,

Having regard to the proposal from the European Commission,

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

Having regard to the opinion of the European Economic and Social Committee **[1]**,

Having regard to the opinion of the Committee of the Regions **[2]**,

Acting in accordance with the ordinary legislative procedure **[3]**,

**1** OJ C 125, 21.4.2017, p. 27.
**2** OJ C 207, 30.6.2017, p. 80.
**3** Position of the European Parliament of 26 March 2019 (not yet published in the Official
Journal) and decision of the Council of 15 April 2019.

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# **EN**

Whereas:

(1) The Treaty on European Union (TEU) provides for the establishment of an internal market

and the institution of a system ensuring that competition in the internal market is not

distorted. Further harmonisation of the laws of the Member States on copyright and related

rights should contribute to the achievement of those objectives.

(2) The directives that have been adopted in the area of copyright and related rights contribute

to the functioning of the internal market, provide for a high level of protection for

rightholders, facilitate the clearance of rights, and create a framework in which the

exploitation of works and other protected subject matter can take place. That harmonised

legal framework contributes to the proper functioning of the internal market, and

stimulates innovation, creativity, investment and production of new content, also in the

digital environment, in order to avoid the fragmentation of the internal market. The

protection provided by that legal framework also contributes to the Union's objective of

respecting and promoting cultural diversity, while at the same time bringing European

common cultural heritage to the fore. Article 167(4) of the Treaty on the Functioning of the

European Union requires the Union to take cultural aspects into account in its action.

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# **EN**

(3) Rapid technological developments continue to transform the way works and other subject

matter are created, produced, distributed and exploited. New business models and new

actors continue to emerge. Relevant legislation needs to be future-proof so as not to restrict

technological development. The objectives and the principles laid down by the Union

copyright framework remain sound. However, legal uncertainty remains, for both

rightholders and users, as regards certain uses, including cross-border uses, of works and

other subject matter in the digital environment. As stated in the Commission

Communication of 9 December 2015 entitled 'Towards a modern, more European

copyright framework', in some areas it is necessary to adapt and supplement the existing

Union copyright framework, while keeping a high level of protection of copyright and

related rights. This Directive provides for rules to adapt certain exceptions and limitations

to copyright and related rights to digital and cross-border environments, as well as for

measures to facilitate certain licensing practices, in particular, but not only, as regards the

dissemination of out-of-commerce works and other subject matter and the online

availability of audiovisual works on video-on-demand platforms, with a view to ensuring

wider access to content. It also contains rules to facilitate the use of content in the public

domain. In order to achieve a well-functioning and fair marketplace for copyright, there

should also be rules on rights in publications, on the use of works or other subject matter

by online service providers storing and giving access to user-uploaded content, on the

transparency of authors' and performers' contracts, on authors' and performers'

remuneration, as well as a mechanism for the revocation of rights that authors and

performers have transferred on an exclusive basis.

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# **EN**

(4) This Directive is based upon, and complements, the rules laid down in the directives

currently in force in this area, in particular Directives 96/9/EC **[1]**, 2000/31/EC **[2]**,

2001/29/EC **[3]**, 2006/115/EC **[4]**, 2009/24/EC **[5]**, 2012/28/EU **[6]** and 2014/26/EU **[7]** of the European

Parliament and of the Council.

**1** 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).
**2** 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 (Directive on electronic commerce) (OJ L 178, 17.7.2000, p. 1).
**3** 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).
**4** 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).
**5** 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).
**6** 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).
**7** 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).

PE-CONS 51/1/19 REV 1 4

# **EN**

(5) In the fields of research, innovation, education and preservation of cultural heritage, digital

technologies permit new types of uses that are not clearly covered by the existing Union

rules on exceptions and limitations. In addition, the optional nature of exceptions and

limitations provided for in Directives 96/9/EC, 2001/29/EC and 2009/24/EC in those fields

could 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, innovation, 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, illustration for teaching in the digital

environment and for preservation of cultural heritage should be introduced. The existing

exceptions and limitations in Union law should continue to apply, including to text and

data mining, education, and preservation activities, as long as they do not limit the scope of

the mandatory exceptions or limitations provided for in this Directive, which need to be

implemented by Member States in their national law. Directives 96/9/EC and 2001/29/EC

should, therefore, be amended.

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# **EN**

(6) The exceptions and limitations provided for in this Directive seek to achieve a fair balance

between the rights and interests of authors and other rightholders, on the one hand, and of

users on the other. They can be applied only in certain special cases that 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.

(7) The protection of technological measures established in Directive 2001/29/EC remains

essential to ensure the protection and the effective exercise of the rights granted to authors

and to other rightholders under Union law. Such protection should be maintained while

ensuring that the use of technological measures does not prevent the enjoyment of the

exceptions and limitations provided for in this Directive. Rightholders should have the

opportunity to ensure that through voluntary measures. They should remain free to choose

the appropriate means of enabling the beneficiaries of the exceptions and limitations

provided for in this Directive to benefit from them. 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, including where works and other subject matter

are made available to the public through on-demand services.

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# **EN**

(8) 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. Text

and data mining makes the processing of large amounts of information with a view to

gaining new knowledge and discovering new trends possible. Text and data mining

technologies are prevalent across the digital economy; however, there is widespread

acknowledgment that text and data mining can, in particular, benefit the research

community and, in so doing, support innovation. Such technologies benefit universities and

other research organisations, as well as cultural heritage institutions since they could also

carry out research in the context of their main activities. However, in the Union, such

organisations and institutions 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 can involve acts protected by copyright, by the sui generis database right or by

both, in particular, the reproduction of works or other subject matter, the extraction of

contents from a database or both which occur for example when the data are normalised in

the process of text and data mining. Where no exception or limitation applies, an

authorisation to undertake such acts is required from rightholders.

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# **EN**

(9) Text and data mining can also be carried out in relation to mere facts or data that are not

protected by copyright, and in such instances no authorisation is required under copyright

law. There can also be instances of text and data mining that do not involve acts of

reproduction or where the reproductions made fall under the mandatory exception for

temporary acts of reproduction provided for in Article 5(1) of Directive 2001/29/EC,

which should continue to apply to text and data mining techniques that do not involve the

making of copies beyond the scope of that exception.

(10) Union law provides for 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 could 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

concerning text and data mining.

PE-CONS 51/1/19 REV 1 8

# **EN**

(11) The legal uncertainty concerning text and data mining should be addressed by providing

for a mandatory exception for universities and other research organisations, as well as for

cultural heritage institutions, to the exclusive right of reproduction and to the right to

prevent extraction from a database. In line with the existing Union research policy, which

encourages universities and research institutes to collaborate with the private sector,

research organisations should also benefit from such an exception when their research

activities are carried out in the framework of public-private partnerships. While research

organisations and cultural heritage institutions should continue to be the beneficiaries of

that exception, they should also be able to rely on their private partners for carrying out

text and data mining, including by using their technological tools.

PE-CONS 51/1/19 REV 1 9

# **EN**

(12) Research organisations across the Union encompass a wide variety of entities the primary

goal of which is to conduct scientific research or to do so together with the provision of

educational services. The term 'scientific research' within the meaning of this Directive

should be understood to cover both the natural sciences and the human sciences. Due to the

diversity of such entities, it is important to have a common understanding of research

organisations. They should for example cover, in addition to universities or other higher

education institutions and their libraries, also entities such as research institutes and

hospitals that carry out research. Despite different legal forms and structures, research

organisations in the 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 could, for example, be reflected through public funding or

through provisions in national laws or public contracts. Conversely, organisations upon

which commercial undertakings have a decisive influence allowing such undertakings to

exercise control because of structural situations, such as through their quality of

shareholder or member, which could result in preferential access to the results of the

research, should not be considered research organisations for the purposes of this

Directive.

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# **EN**

(13) Cultural heritage institutions should be understood as covering publicly accessible libraries

and museums regardless of the type of works or other subject matter that they hold in their

permanent collections, as well as archives, film or audio heritage institutions. They should

also be understood to include, inter alia, national libraries and national archives, and, as far

as their archives and publicly accessible libraries are concerned, educational

establishments, research organisations and public sector broadcasting organisations.

(14) Research organisations and cultural heritage institutions, including the persons attached

thereto, should be covered by the text and data mining exception with regard to content to

which they have lawful access. Lawful access should be understood as covering access to

content based on an open access policy or through contractual arrangements between

rightholders and research organisations or cultural heritage institutions, such as

subscriptions, or through other lawful means. For instance, in the case of subscriptions

taken by research organisations or cultural heritage institutions, the persons attached

thereto and covered by those subscriptions should be deemed to have lawful access.

Lawful access should also cover access to content that is freely available online.

PE-CONS 51/1/19 REV 1 11

# **EN**

(15) Research organisations and cultural heritage institutions could in certain cases, for example

for subsequent verification of scientific research results, need to retain copies made under

the exception for the purposes of carrying out text and data mining. In such cases, the

copies should be stored in a secure environment. Member States should be free to decide,

at national level and after discussions with relevant stakeholders, on further specific

arrangements for retaining the copies, including the ability to appoint trusted bodies for the

purpose of storing such copies. In order not to unduly restrict the application of the

exception, such arrangements should be proportionate and limited to what is needed for

retaining the copies in a safe manner and preventing unauthorised use. Uses for the

purpose of scientific research, other than text and data mining, such as scientific peer

review and joint research, should remain covered, where applicable, by the exception or

limitation provided for in Article 5(3)(a) of Directive 2001/29/EC.

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# **EN**

(16) 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 when there is a

risk that the security and integrity of their systems or databases could be jeopardised. Such

measures could, for example, be used to ensure that only persons having lawful access to

their data can access them, including through IP address validation or user authentication.

Those measures should remain proportionate to the risks involved, and 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.

(17) In view of the nature and scope of the exception, which is limited to entities carrying out

scientific research, any potential harm created to rightholders through this exception would

be minimal. Member States should, therefore, not provide for compensation for

rightholders as regards uses under the text and data mining exceptions introduced by this

Directive.

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# **EN**

(18) In addition to their significance in the context of scientific research, text and data mining

techniques are widely used both by private and public entities to analyse large amounts of

data in different areas of life and for various purposes, including for government services,

complex business decisions and the development of new applications or technologies.

Rightholders should remain able to license the uses of their works or other subject matter

falling outside the scope of the mandatory exception provided for in this Directive for text

and data mining for the purposes of scientific research and of the existing exceptions and

limitations provided for in Directive 2001/29/EC. At the same time, consideration should

be given to the fact that users of text and data mining could be faced with legal uncertainty

as to whether reproductions and extractions made for the purposes of text and data mining

can be carried out on lawfully accessed works or other subject matter, in particular when

the reproductions or extractions made for the purposes of the technical process do not fulfil

all the conditions of the existing exception for temporary acts of reproduction provided for

in Article 5(1) of Directive 2001/29/EC. In order to provide for more legal certainty in

such cases and to encourage innovation also in the private sector, this Directive should

provide, under certain conditions, for an exception or limitation for reproductions and

extractions of works or other subject matter, for the purposes of text and data mining, and

allow the copies made to be retained for as long as is necessary for those text and data

mining purposes.

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# **EN**

This exception or limitation should only apply where the work or other subject matter is

accessed lawfully by the beneficiary, including when it has been made available to the

public online, and insofar as the rightholders have not reserved in an appropriate manner

the rights to make reproductions and extractions for text and data mining. In the case of

content that has been made publicly available online, it should only be considered

appropriate to reserve those rights by the use of machine-readable means, including

metadata and terms and conditions of a website or a service. Other uses should not be

affected by the reservation of rights for the purposes of text and data mining. In other

cases, it can be appropriate to reserve the rights by other means, such as contractual

agreements or a unilateral declaration. Rightholders should be able to apply measures to

ensure that their reservations in this regard are respected. This exception or limitation

should leave intact the mandatory exception for text and data mining for scientific research

purposes provided for in this Directive, as well as the existing exception for temporary acts

of reproduction provided for in Article 5(1) of Directive 2001/29/EC.

PE-CONS 51/1/19 REV 1 15

# **EN**

(19) 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 of works or other subject matter in such a way that members of the public

may access them from a place and a time individually chosen by them, for the sole purpose

of 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 of a substantial part of its contents for the

purpose of illustration for teaching. The scope of those exceptions or limitations as they

apply to digital uses is unclear. In addition, there is a lack of clarity as to whether those

exceptions or limitations would apply where teaching is provided online and at a distance.

Moreover, the existing legal framework does not provide for a cross-border effect. This

situation could hamper the development of digitally supported teaching activities and

distance learning. Therefore, the introduction of a new mandatory exception or limitation is

necessary to ensure that educational establishments benefit from full legal certainty when

using works or other subject matter in digital teaching activities, including online and

across borders.

PE-CONS 51/1/19 REV 1 16

# **EN**

(20) 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 recognised by a Member State, including those involved in primary,

secondary, vocational and higher education. It should apply only to the extent that the uses

are justified by the non-commercial purpose of the particular teaching activity. The

organisational structure and the means of funding of an educational establishment should

not be the decisive factors in determining whether the activity is non-commercial in nature.

(21) The exception or limitation provided for in this Directive for the sole purpose of

illustration for teaching should be understood as covering digital uses of works or other

subject matter to support, enrich or complement the teaching, including learning activities.

The distribution of software allowed under that exception or limitation should be limited to

digital transmission of software. In most cases, the concept of illustration would, therefore,

imply the use only of parts or extracts of works, which should not substitute for the

purchase of materials primarily intended for the educational market. When implementing

the exception or limitation, Member States should remain free to specify, for the different

types of works or other subject matter, in a balanced manner, the proportion of a work or

other subject matter that can be used for the sole purpose of illustration for teaching. Uses

allowed under the exception or limitation should be understood to cover the specific

accessibility needs of persons with a disability in the context of illustration for teaching.

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# **EN**

(22) The use of works or other subject matter under the exception or limitation for the sole

purpose of illustration for teaching provided for in this Directive should only take place in

the context of teaching and learning activities carried out under the responsibility of

educational establishments, including during examinations or teaching activities that take

place outside the premises of educational establishments, for example in a museum, library

or another cultural heritage institution, and should be limited to what is necessary for the

purpose of such activities. The exception or limitation should cover both uses of works or

other subject matter made in the classroom or in other venues through digital means, for

example electronic whiteboards or digital devices which might be connected to the

internet, as well as uses made at a distance through secure electronic environments, such as

in the context of online courses or access to teaching material complementing a given

course. Secure electronic environments should be understood as digital teaching and

learning environments access to which is limited to an educational establishment's teaching

staff and to pupils or students enrolled in a study programme, in particular through

appropriate authentication procedures including password-based authentication.

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# **EN**

(23) Different arrangements, based on the implementation of the exception or limitation

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 of different levels of education. While 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 arrangements for implementation can

vary from one Member State to another, to the extent that they do not hamper the effective

application of the exception or limitation or cross-border uses. Member States should, for

example, remain free to require that the use of works or other subject matter respect the

moral rights of authors and performers. 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 suitable licences, covering at least the same uses as those allowed under the

exception or limitation. Member States should ensure that where licences cover only

partially the uses allowed under the exception or limitation, all the other uses remain

subject to the exception or limitation.

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# **EN**

Member States could, for example, use this mechanism to give precedence to licences for

material that is primarily intended for the educational market or licences for sheet music.

In order to avoid that subjecting the application of the exception to the availability of

licences results in legal uncertainty or an administrative burden for educational

establishments, Member States adopting such an 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. Such licensing

schemes should meet the needs of educational establishments. Information tools aimed at

ensuring that existing licensing schemes are visible could also be developed. Such schemes

could, for example, be based on collective licensing or on extended collective licensing, in

order to avoid educational establishments having to negotiate individually with

rightholders. In order to guarantee legal certainty, Member States should specify under

which conditions an educational establishment can use protected works or other subject

matter under that exception and, conversely, when it should act under a licensing scheme.

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# **EN**

(24) Member States should remain free to provide that rightholders receive fair compensation

for the digital uses of their works or other subject matter under the exception or limitation

provided for in this Directive for illustration for teaching. In setting the level of fair

compensation, due account should be taken, inter alia, of Member States' educational

objectives and of the harm to rightholders. Member States that decide to provide for fair

compensation should encourage the use of systems that do not create an administrative

burden for educational establishments.

(25) Cultural heritage institutions are engaged in the preservation of their collections for future

generations. An act of preservation of a work or other subject matter in the collection of a

cultural heritage institution might require a reproduction and consequently require the

authorisation of the relevant rightholders. Digital technologies offer new ways of

preserving the heritage contained in those collections but they also create new challenges.

In view of those new challenges, it is necessary to adapt the existing legal framework by

providing for a mandatory exception to the right of reproduction in order to allow such acts

of preservation by such institutions.

(26) The existence of different approaches in the Member States with regard to acts of

reproduction for preservation by cultural heritage institutions hampers cross-border

cooperation, the sharing of means of preservation and the establishment of cross-border

preservation networks in the internal market by such institutions, leading to an inefficient

use of resources. That can have a negative impact on the preservation of cultural heritage.

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# **EN**

(27) 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 or to insure such works and other subject matter. Such

an exception should allow the making of copies by the appropriate preservation tool,

means or technology, in any format or medium, in the required number, at any point in the

life of a work or other subject matter and to the extent required for preservation purposes.

Acts of reproduction undertaken by cultural heritage institutions for purposes other than

the preservation of works and other subject matter in their permanent collections should

remain subject to the authorisation of rightholders, unless permitted by other exceptions or

limitations provided for in Union law.

(28) Cultural heritage institutions do not necessarily have the technical means or expertise to

undertake the acts required to preserve their collections themselves, particularly in the

digital environment, and might, therefore, have recourse to the assistance of other cultural

institutions and other third parties for that purpose. Under the exception for preservation

purposes provided for by this Directive, cultural heritage institutions should be allowed to

rely on third parties acting on their behalf and under their responsibility, including those

that are based in other Member States, for the making of copies.

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# **EN**

(29) 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 of such

works or other subject matter are owned or permanently held by that institution, for

example as a result of a transfer of ownership or a licence agreement, legal deposit

obligations or permanent custody arrangements.

(30) Cultural heritage institutions should benefit from a clear framework for the digitisation and

dissemination, including across borders, of works or other subject matter that are

considered to be out of commerce for the purposes of this Directive. However, the

particular characteristics of the collections of out-of-commerce works or other subject

matter, together with the amount of works and other subject matter involved in mass

digitisation projects, mean that obtaining the prior authorisation of the individual

rightholders can 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 or that they have never been exploited commercially. It is

therefore necessary to provide for measures to facilitate certain uses of out-of-commerce

works or other subject matter that are permanently in the collections of cultural heritage

institutions.

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# **EN**

(31) All Member States should have legal mechanisms in place allowing licences issued by

relevant and sufficiently representative collective management organisations to cultural

heritage institutions, for certain uses of out-of-commerce works or other subject matter, to

also apply to the rights of rightholders that have not mandated a representative collective

management organisation in that regard. It should be possible, pursuant to this Directive,

for such licences to cover all Member States.

(32) The provisions on collective licensing of out-of-commerce works or other subject matter

introduced by this Directive might not provide a solution for all cases in which cultural

heritage institutions encounter difficulties in obtaining all the necessary authorisations

from rightholders for the use of such out-of-commerce works or other subject matter. That

could be the case for example, where there is no practice of collective management of

rights for a certain type of work or other subject matter or where the relevant collective

management organisation is not sufficiently representative for the category of the

rightholders and of the rights concerned. In such particular instances, it should be possible

for cultural heritage institutions to make out-of-commerce works or other subject matter

that are permanently in their collection available online in all Member States under a

harmonised exception or limitation to copyright and related rights. It is important that uses

under such exception or limitation only take place when certain conditions, in particular as

regards the availability of licensing solutions, are fulfilled. A lack of agreement on the

conditions of the licence should not be interpreted as a lack of availability of licensing

solutions.

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# **EN**

(33) Member States should, within the framework provided for in this Directive, have flexibility

in choosing the specific type of licensing mechanism, such as extended collective licensing

or presumptions of representation, that they put in place for the use of out-of-commerce

works or other subject matter by cultural heritage institutions, in accordance with their

legal traditions, practices or circumstances. Member States should also have flexibility in

determining what the requirements for collective management organisations to be

sufficiently representative are, as long as that determination is based on a significant

number of rightholders in the relevant type of works or other subject matter having given a

mandate allowing the licensing of the relevant type of use. Member States should be free to

establish specific rules applicable to cases in which more than one collective management

organisation is representative for the relevant works or other subject matter, requiring for

example joint licences or an agreement between the relevant organisations.

(34) For the purpose of those licensing mechanisms, a rigorous and well-functioning collective

management system is important. Directive 2014/26/EU provides for such a system and

that system includes in particular rules on good governance, transparency and reporting, as

well as the regular, diligent and accurate distribution and payment of amounts due to

individual rightholders.

PE-CONS 51/1/19 REV 1 25

# **EN**

(35) Appropriate safeguards should be available for all rightholders, who should be given the

opportunity of excluding the application of the licensing mechanisms and of the exception

or limitation, introduced by this Directive for the use of out-of-commerce works or other

subject matter, in relation to all their works or other subject matter, in relation to all

licences or all uses under the exception or limitation, in relation to particular works or

other subject matter, or in relation to particular licences or uses under the exception or

limitation, at any time before or during the term of the licence or before or during the use

under the exception or limitation. Conditions governing those licensing mechanisms

should not affect their practical relevance for cultural heritage institutions. It is important

that, where a rightholder excludes the application of such mechanisms or of such exception

or limitation to one or more works or other subject matter, any ongoing uses are terminated

within a reasonable period, and, where they take place under a collective licence, that the

collective management organisation once informed ceases to issue licences covering the

uses concerned. Such exclusion by rightholders should not affect their claims to

remuneration for the actual use of the work or other subject matter under the licence.

(36) This Directive does not affect the ability of Member States to decide who is to have legal

responsibility as regards the compliance of the licensing of out-of-commerce works or

other subject matter, and of their use, with the conditions set out in this Directive, and as

regards the compliance of the parties concerned with the terms of those licences.

PE-CONS 51/1/19 REV 1 26

# **EN**

(37) Considering the variety of works and other subject matter in the collections of cultural

heritage institutions, it is important that the licensing mechanisms and the exception or

limitation provided for by this Directive are available and can be used in practice for

different types of works and other subject matter, including photographs, software,

phonograms, audiovisual works and unique works of art, including where they have never

been commercially available. Never-in-commerce works can include posters, leaflets,

trench journals or amateur audiovisual works, but also unpublished works or other subject

matter, without prejudice to other applicable legal constraints, such as national rules on

moral rights. When a work or other subject matter is available in any of its different

versions, such as subsequent editions of literary works and alternate cuts of

cinematographic works, or in any of its different manifestations, such as digital and printed

formats of the same work, that work or other subject matter should not be considered out

of commerce. Conversely, the commercial availability of adaptations, including other

language versions or audiovisual adaptations of a literary work, should not preclude a work

or other subject matter from being deemed to be out of commerce in a given language. In

order to reflect the specificities of different types 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 might have to be established for the

practical application of those licensing mechanisms, such as a requirement for a certain

time period to have elapsed since the work or other subject matter was first commercially

available. It is appropriate that Member States consult rightholders, cultural heritage

institutions and collective management organisations when establishing such requirements

and procedures.

PE-CONS 51/1/19 REV 1 27

# **EN**

(38) When determining whether works or other subject matter are out of commerce, a

reasonable effort should be required to assess their availability to the public in the

customary channels of commerce, taking into account the characteristics of the particular

work or other subject matter or of the particular set of works or other subject matter.

Member States should be free to determine the allocation of responsibilities for making

that reasonable effort. The reasonable effort should not have to involve repeated action

over time but it should nevertheless involve taking account of any easily accessible

evidence of upcoming availability of works or other subject matter in the customary

channels of commerce. A work-by-work assessment should only be required where that is

considered reasonable in view of the availability of relevant information, the likelihood of

commercial availability and the expected transaction cost. Verification of availability of a

work or other subject matter should normally take place in the Member State where the

cultural heritage institution is established, unless verification across borders is considered

reasonable, for example in cases where there is easily available information that a literary

work was first published in a given language version in another Member State. In many

cases, the out-of-commerce status of a set of works or other subject matter could be

determined through a proportionate mechanism, such as sampling. The limited availability

of a work or other subject matter, such as its availability in second-hand shops, or the

theoretical possibility that a licence for a work or other subject matter could be obtained

should not be considered as availability to the public in the customary channels of

commerce.

PE-CONS 51/1/19 REV 1 28

# **EN**

(39) For reasons of international comity, the licensing mechanism and the exception or

limitation provided for in this Directive for the digitisation and dissemination of

out-of-commerce works or other subject matter should not apply to sets of

out-of-commerce works or other subject matter where there is evidence available to

presume that they predominantly consist of works or other subject matter of third

countries, unless the collective management organisation concerned is sufficiently

representative for that third country, for example via a representation agreement. That

assessment could be based on the evidence available following the making of the

reasonable effort to determine whether the works or other subject matter are out of

commerce, without the need to search for further evidence. A work-by-work assessment of

the origin of out-of-commerce works or other subject matter should only be required

insofar as it is also required for making the reasonable effort to determine whether they are

commercially available.

PE-CONS 51/1/19 REV 1 29

# **EN**

(40) Contracting cultural heritage institutions and collective management organisations should

remain free to agree on the territorial scope of licences, including the option of covering all

Member States, the licence fee and the uses allowed. Uses covered by such licences should

not be for profit-making purposes, including where copies are distributed by the cultural

heritage institution, such as in the case of promotional material about an exhibition. At the

same time, given that the digitisation of the collections of cultural heritage institutions can

entail significant investments, any licences granted under the mechanism provided for in

this Directive should not prevent cultural heritage institutions from covering the costs of

the licence and the costs of digitising and disseminating the works or other subject matter

covered by the licence.

PE-CONS 51/1/19 REV 1 30

# **EN**

(41) Information regarding the ongoing and future use of out-of-commerce works and other

subject matter by cultural heritage institutions on the basis of this Directive and the

arrangements in place for all rightholders to exclude the application of licences or of the

exception or limitation to their works or other subject matter should be adequately

publicised both before and during the use under a licence or under the exception or

limitation, as appropriate. Such publicising is particularly important when uses take place

across borders in the internal market. It is therefore appropriate to provide for the creation

of a single publicly accessible online portal for the Union in order to make such

information available to the public for a reasonable period of time before the use takes

place. Such portal should make it easier for rightholders to exclude the application of

licences or of the exception or limitation to their works or other subject matter. Under

Regulation (EU) No 386/2012 of the European Parliament and of the Council **[1]**, the

European Union Intellectual Property Office is entrusted with certain tasks and activities,

financed by making use of its own budgetary means and aimed 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 portal making

such information available.

**1** 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).

PE-CONS 51/1/19 REV 1 31

# **EN**

In addition to making the information available through the portal, further appropriate

publicity measures might need to be taken on a case-by-case basis in order to increase the

awareness in that regard of the rightholders concerned, for example through the use of

additional channels of communication to reach a wider public. The necessity, the nature

and the geographic scope of the additional publicity measures should depend on the

characteristics of the relevant out-of-commerce works or other subject matter, the terms of

the licences or the type of use under the exception or limitation, and the existing practices

in Member States. Publicity measures should be effective without the need to inform each

rightholder individually.

(42) In order to ensure that the licensing mechanisms established by this Directive for

out-of-commerce works or other subject matter are relevant and function properly, that

rightholders are adequately protected, that licences are properly publicised and that legal

certainty is provided with regard to the representativeness of collective management

organisations and the categorisation of works, Member States should foster sector-specific

stakeholder dialogue.

PE-CONS 51/1/19 REV 1 32

# **EN**

(43) The measures provided for in this Directive to facilitate the collective licensing of rights in

out-of-commerce works or other subject matter that are permanently in the collections of

cultural heritage institutions should be without prejudice to the use of such works or other

subject matter under exceptions or limitations provided for in Union law, or under other

licences with an extended effect, where such licensing is not based on the out-of-commerce

status of the covered works or other subject matter. Those measures should also be without

prejudice to national mechanisms for the use of out-of-commerce works or other subject

matter based on licences between collective management organisations and users other

than cultural heritage institutions.

(44) Mechanisms of collective licensing with an extended effect allow a collective management

organisation to offer licences as a collective licensing body on behalf of rightholders,

irrespective of whether they have authorised the organisation to do so. Systems built on

mechanisms such as extended collective licensing, legal mandates or presumptions of

representation, are a well-established practice in several Member States and can be used in

different areas. A functioning copyright framework that works for all parties requires the

availability of proportionate, legal mechanisms for the licensing of works or other subject

matter. Member States should, therefore, be able to rely on solutions allowing collective

management organisations to offer licences covering a potentially large number of works

or other subject matter for certain types of use, and to distribute the revenue resulting from

such licences to rightholders, in accordance with Directive 2014/26/EU.

PE-CONS 51/1/19 REV 1 33

# **EN**

(45) Given the nature of some uses, together with the usually large amount of works or other

subject matter involved, the transaction cost of individual rights clearance with every

rightholder concerned is prohibitively high. As a result, it is unlikely that, without effective

collective licensing mechanisms, all the transactions in the areas concerned that are

required to enable the use of such works or other subject matter would take place.

Extended collective licensing by collective management organisations and similar

mechanisms can make it possible to conclude agreements in those areas where collective

licensing based on an authorisation by rightholders does not provide an exhaustive solution

for covering all works or other subject matter to be used. Such mechanisms complement

collective management of rights based on individual authorisation by rightholders, by

providing full legal certainty to users in certain cases. At the same time, they provide an

opportunity to rightholders to benefit from the legitimate use of their works.

PE-CONS 51/1/19 REV 1 34

# **EN**

(46) Given the increasing importance of the ability to offer flexible licensing schemes in the

digital age, and the increasing use of such schemes, Member States should be able to

provide for licensing mechanisms which permit collective management organisations to

conclude licences, on a voluntary basis, irrespective of whether all rightholders have

authorised the organisation concerned to do so. Member States should have the ability to

maintain and introduce such mechanisms in accordance with their national traditions,

practices or circumstances, subject to the safeguards provided for in this Directive and in

compliance with Union law and the international obligations of the Union. Such

mechanisms should only have effect in the territory of the Member State concerned, unless

otherwise provided for in Union law. Member States should have flexibility in choosing

the specific type of mechanism allowing licences for works or other subject matter to

extend to the rights of rightholders that have not authorised the organisation that concludes

the agreement, provided that ~~s~~ uch mechanism is in compliance with Union law, including

with the rules on collective management of rights provided for in Directive 2014/26/EU. In

particular, such mechanisms should also ensure that Article 7 of Directive 2014/26/EU

applies to rightholders that are not members of the organisation that concludes the

agreement. Such mechanisms could include extended collective licensing, legal mandates

and presumptions of representation. The provisions of this Directive concerning collective

licensing should not affect the existing ability of Member States to apply mandatory

collective management of rights or other collective licensing mechanisms with an extended

effect, such as that included in Article 3 of Council Directive 93/83/EEC **[1]** .

**1** Council Directive 93/83/EEC of 27 September 1993 on the coordination of certain rules
concerning copyright and rights related to copyright applicable to satellite broadcasting and
cable retransmission (OJ L 248, 6.10.1993, p. 15).

PE-CONS 51/1/19 REV 1 35

# **EN**

(47) It is important that mechanisms of collective licensing with an extended effect are only

applied in well-defined areas of use, in which obtaining authorisation from rightholders on

an individual basis is typically onerous and impractical to a degree that makes the required

licensing transaction, namely one involving a licence that covers all rightholders

concerned, unlikely to occur due to the nature of the use or of the types of works or other

subject matter concerned. Such mechanisms should be based on objective, transparent and

non-discriminatory criteria as regards the treatment of rightholders, including rightholders

who are not members of the collective management organisation. In particular, the mere

fact that the rightholders affected are not nationals or residents of, or established in, the

Member State of the user who is seeking a licence, should not be in itself a reason to

consider the clearance of rights to be so onerous and impractical as to justify the use of

such mechanisms. It is equally important that the licensed use neither affect adversely the

economic value of the relevant rights nor deprive rightholders of significant commercial

benefits.

PE-CONS 51/1/19 REV 1 36

# **EN**

(48) Member States should ensure that appropriate safeguards are in place to protect the

legitimate interests of rightholders that have not mandated the organisation offering the

licence and that those safeguards apply in a non-discriminatory manner. Specifically, in

order to justify the extended effect of the mechanisms, such an organisation should be, on

the basis of authorisations from rightholders, sufficiently representative of the types of

works or other subject matter and of the rights which are the subject of the licence.

Member States should determine the requirements to be satisfied for those organisations to

be considered sufficiently representative, taking into account the category of rights

managed by the organisation, the ability of the organisation to manage the rights

effectively, the creative sector in which it operates, and whether the organisation covers a

significant number of rightholders in the relevant type of works or other subject matter

who have given a mandate allowing the licensing of the relevant type of use, in accordance

with Directive 2014/26/EU. To provide legal certainty and ensure that there is confidence

in the mechanisms, Member States should be allowed to decide who is to have legal

responsibility as regards uses authorised by the licence agreement. Equal treatment should

be guaranteed to all rightholders whose works are exploited under the licence, including in

particular as regards access to information on the licensing and the distribution of

remuneration. Publicity measures should be effective throughout the duration of the licence

and should not involve imposing a disproportionate administrative burden on users,

collective management organisations or rightholders, and without the need to inform each

rightholder individually.

PE-CONS 51/1/19 REV 1 37

# **EN**

In order to ensure that rightholders can easily regain control of their works, and prevent

any uses of their works that would be prejudicial to their interests, it is essential that

rightholders be given an effective opportunity to exclude the application of such

mechanisms to their works or other subject matter for all uses and works or other subject

matter, or for specific uses and works or other subject matter, including before the

conclusion of a licence and during the term of the licence. In such cases, any ongoing use

should be terminated within a reasonable period. Such exclusion by rightholders should not

affect their claims for remuneration for the actual use of the work or other subject matter

under the licence. Member States should also be able to decide that additional measures are

appropriate to protect rightholders. Such additional measures could include, for example,

encouraging the exchange of information among collective management organisations and

other interested parties across the Union to raise awareness about such mechanisms and the

option available to rightholders to exclude their works or other subject matter from those

mechanisms.

(49) Member States should ensure that the purpose and scope of any licence granted as a result

of mechanisms of collective licensing with an extended effect, as well as the possible uses,

should always be carefully and clearly defined in law or, if the underlying law is a general

provision, in the licensing practices applied as a result of such general provisions, or in the

licences granted. The ability to operate a licence under such mechanisms should also be

limited to collective management organisations that are subject to national law

implementing Directive 2014/26/EU.

PE-CONS 51/1/19 REV 1 38

# **EN**

(50) Given the different traditions and experiences in relation to mechanisms of collective

licensing with an extended effect across Member States, and their applicability to

rightholders irrespective of their nationality or their Member State of residence, it is

important to ensure that there is transparency and dialogue at Union level about the

practical functioning of such mechanisms, including as regards the effectiveness of

safeguards for rightholders, the usability of such mechanisms, their effect on rightholders

who are not members of the collective management organisation, or on rightholders who

are nationals of, or resident in, another Member State, and the impact on the cross-border

provision of services, including the potential need to lay down rules to give such

mechanisms cross-border effect within the internal market. To ensure transparency,

information about the use of such mechanisms under this Directive should be regularly

published by the Commission. Member States that have introduced such mechanisms

should, therefore, inform the Commission about relevant national provisions and their

application in practice, including the scope and types of licensing introduced on the basis

of general provisions, the scale of licensing and the collective management organisations

involved. Such information should be discussed with Member States in the contact

committee established in Article 12(3) of Directive 2001/29/EC. The Commission should

publish a report on the use of such mechanisms in the Union and their impact on licensing

and rightholders, on the dissemination of cultural content and on the cross-border provision

of services in the area of collective management of copyright and related rights, as well as

on the impact on competition.

PE-CONS 51/1/19 REV 1 39

# **EN**

(51) Video-on-demand services have the potential to play a decisive role in the dissemination of

audiovisual works across the Union. However, the availability of such works, in particular

European works, on video-on-demand services remains limited. Agreements on the online

exploitation of such works can be difficult to conclude due to issues related to the licensing

of rights. Such issues could, for instance, arise when the holder of the rights for a given

territory has a low economic incentive to exploit a work online and does not license or

holds back the online rights, which can lead to audiovisual works being unavailable on

video-on-demand services. Other issues could relate to windows of exploitation.

PE-CONS 51/1/19 REV 1 40

# **EN**

(52) To facilitate the licensing of rights in audiovisual works to video-on-demand services,

Member States should be required to provide for a negotiation mechanism allowing parties

willing to conclude an agreement to rely on the assistance of an impartial body or of one or

more mediators. For that purpose, Member States should be allowed either to establish a

new body or rely on an existing one that fulfils the conditions established by this Directive.

Member States should be able to designate one or more competent bodies or mediators.

The body or the mediators should meet with the parties and help with the negotiations by

providing professional, impartial and external advice. Where a negotiation involves parties

from different Member States and where those parties decide to rely on the negotiation

mechanism, the parties should agree beforehand on the competent Member State. The body

or the mediators could meet with the parties to facilitate the start of negotiations or in the

course of the negotiations to facilitate the conclusion of an agreement. Participation in that

negotiation mechanism and the subsequent conclusion of agreements should be voluntary

and should not affect the parties' contractual freedom. Member States should be free to

decide on the specific 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 mechanism. Without it being an obligation for them,

Member States should encourage dialogue between representative organisations.

PE-CONS 51/1/19 REV 1 41

# **EN**

(53) The expiry of the term of protection of a work entails the entry of that work into the public

domain and the expiry of the rights that Union copyright law provides in relation to that

work. In the field of visual arts, the circulation of faithful reproductions of works in the

public domain contributes to the access to and promotion of culture, and the access to

cultural heritage. In the digital environment, the protection of such reproductions through

copyright or related rights is inconsistent with the expiry of the copyright protection of

works. In addition, differences between the national copyright laws governing the

protection of such reproductions give rise to legal uncertainty and affect the cross-border

dissemination of works of visual arts in the public domain. Certain reproductions of works

of visual arts in the public domain should, therefore, not be protected by copyright or

related rights. All of that should not prevent cultural heritage institutions from selling

reproductions, such as postcards.

PE-CONS 51/1/19 REV 1 42

# **EN**

(54) A free and pluralist press is essential to ensure quality journalism and citizens' access to

information. It provides a fundamental contribution to public debate and the proper

functioning of a democratic society. The wide availability of press publications online has

given rise to the emergence of new online services, such as news aggregators or media

monitoring services, for which the reuse of press publications constitutes an important part

of their business models and a source of revenue. Publishers of press publications are

facing problems in licensing the online use of their publications to the providers of those

kinds of services, making it more difficult for them to recoup their investments. In the

absence of recognition of publishers of press publications as rightholders, the licensing and

enforcement of rights in press publications regarding online uses by information society

service providers in the digital environment are often complex and inefficient.

PE-CONS 51/1/19 REV 1 43

# **EN**

(55) The organisational and financial contribution of publishers in producing press publications

needs to be recognised and further encouraged to ensure the sustainability of the publishing

industry and thereby foster the availability of reliable information. It is therefore necessary

to provide at Union level for harmonised legal protection for press publications in respect

of online uses by information society service providers, which leaves the existing

copyright rules in Union law applicable to private or non-commercial uses of press

publications by individual users unaffected, including where such users share press

publications online. Such protection should be effectively guaranteed through the

introduction, in Union law, of rights related to copyright for the reproduction and making

available to the public of press publications of publishers established in a Member State in

respect of online uses by information society service providers within the meaning of

Directive (EU) 2015/1535 of the European Parliament and of the Council **[1]** . The legal

protection for press publications provided for by this Directive should benefit publishers

that are established in a Member State and have their registered office, central

administration or principal place of business within the Union.

The concept of publisher of press publications should be understood as covering service

providers, such as news publishers or news agencies, when they publish press publications

within the meaning of this Directive.

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

PE-CONS 51/1/19 REV 1 44

# **EN**

(56) For the purposes of this Directive, it is necessary to define the concept of 'press

publication' so that it only covers journalistic publications, published in any media,

including on paper, in the context of an economic activity that constitutes a provision of

services under Union law. The press publications that should be covered include, for

instance, daily newspapers, weekly or monthly magazines of general or special interest,

including subscription-based magazines, and news websites. Press publications contain

mostly literary works, but increasingly include other types of works and other subject

matter, in particular photographs and videos. Periodical publications published for

scientific or academic purposes, such as scientific journals, should not be covered by the

protection granted to press publications under this Directive. Neither should that protection

apply to websites, such as blogs, that provide information as part of an activity that is not

carried out under the initiative, editorial responsibility and control of a service provider,

such as a news publisher.

PE-CONS 51/1/19 REV 1 45

# **EN**

(57) 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 online uses by information society service

providers are concerned. The rights granted to publishers of press publications should not

extend to acts of hyperlinking. They should also not extend to mere facts reported in press

publications. The rights granted to publishers of press publications under this Directive

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 in

the case of quotations for purposes such as criticism or review provided for in

Article 5(3)(d) of that Directive.

(58) The use of press publications by information society service providers can consist of the

use of entire publications or articles but also of parts of press publications. Such uses of

parts of press publications have also gained economic relevance. At the same time, the use

of individual words or very short extracts of press publications by information society

service providers may not undermine the investments made by publishers of press

publications in the production of content. Therefore, it is appropriate to provide that the use

of individual words or very short extracts of press publications should not fall within the

scope of the rights provided for in this Directive. Taking into account the massive

aggregation and use of press publications by information society service providers, it is

important that the exclusion of very short extracts be interpreted in such a way as not to

affect the effectiveness of the rights provided for in this Directive.

PE-CONS 51/1/19 REV 1 46

# **EN**

(59) 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. Publishers of press publications should,

therefore, not be able to invoke the protection granted to them under this Directive against

authors and other rightholders or against other authorised users of the same works or other

subject matter. That should be without prejudice to contractual arrangements concluded

between the publishers of press publications, on the one hand, and authors and other

rightholders, on the other. Authors whose works are incorporated in a press publication

should be entitled to an appropriate share of the revenues that press publishers receive for

the use of their press publications by information society service providers. That should be

without prejudice to national laws on ownership or exercise of rights in the context of

employment contracts, provided that such laws are in compliance with Union law.

PE-CONS 51/1/19 REV 1 47

# **EN**

(60) Publishers, including those of press publications, books or scientific publications and

music publications, often operate on the basis of the transfer of authors' rights by means of

contractual agreements or statutory provisions. In that context, publishers make an

investment with a view to the exploitation of the works contained in their publications and

can in some instances be deprived of revenues where such works are used under exceptions

or limitations such as those for private copying and reprography, including the

corresponding existing national schemes for reprography in the Member States, or under

public lending schemes. In several Member States, compensation for uses under those

exceptions or limitations is shared between authors and publishers. In order to take account

of this situation and to improve legal certainty for all parties concerned, this Directive

allows Member States that have existing schemes for the sharing of compensation between

authors and publishers to maintain them. That is particularly important for Member States

that had such compensation-sharing mechanisms before 12 November 2015, although in

other Member States compensation is not shared and is due solely to authors in accordance

with national cultural policies. While this Directive should apply in a non-discriminatory

way to all Member States, it should respect the traditions in this area and not oblige

Member States that do not currently have such compensation-sharing schemes to introduce

them. It should not affect existing or future arrangements in Member States regarding

remuneration in the context of public lending.

PE-CONS 51/1/19 REV 1 48

# **EN**

It should also leave national arrangements relating to the management of rights and to

remuneration rights unaffected, provided that they are in compliance with Union law. All

Member States should be allowed but not obliged to provide that, where authors have

transferred or licensed their rights to a publisher or otherwise contribute with their works to

a publication, and there are systems in place to compensate for the harm caused to them by

an exception or limitation, including through collective management organisations that

jointly represent authors and publishers, publishers are entitled to a share of such

compensation. Member States should remain free to determine how publishers are to

substantiate their claims for compensation or remuneration, and to lay down the conditions

for the sharing of such compensation or remuneration between authors and publishers in

accordance with their national systems.

PE-CONS 51/1/19 REV 1 49

# **EN**

(61) In recent years, the functioning of the online content market has gained in complexity.

Online content-sharing services providing access to a large amount of copyright-protected

content uploaded by their users have become a main source of access to content online.

Online services are a means of providing wider access to cultural and creative works and

offer great opportunities for cultural and creative industries to develop new business

models. However, although they enable diversity and ease of access to content, they also

generate challenges when copyright-protected content is uploaded without prior

authorisation from rightholders. Legal uncertainty exists as to whether the providers of

such services engage in copyright-relevant acts, and need to obtain authorisation from

rightholders for content uploaded by their users who do not hold the relevant rights in the

uploaded content, without prejudice to the application of exceptions and limitations

provided for in Union law. That uncertainty affects the ability of rightholders to determine

whether, and under which conditions, their works and other subject matter are used, as well

as their ability to obtain appropriate remuneration for such use. It is therefore important to

foster the development of the licensing market between rightholders and online

content-sharing service providers. Those licensing agreements should be fair and keep a

reasonable balance between both parties. Rightholders should receive appropriate

remuneration for the use of their works or other subject matter. However, as contractual

freedom should not be affected by those provisions, rightholders should not be obliged to

give an authorisation or to conclude licensing agreements.

PE-CONS 51/1/19 REV 1 50

# **EN**

(62) Certain information society services, as part of their normal use, are designed to give

access to the public to copyright-protected content or other subject matter uploaded by

their users. The definition of an online content-sharing service provider laid down in this

Directive should target only online services that play an important role on the online

content market by competing with other online content services, such as online audio and

video streaming services, for the same audiences. The services covered by this Directive

are services, the main or one of the main purposes of which is to store and enable users to

upload and share a large amount of copyright-protected content with the purpose of

obtaining profit therefrom, either directly or indirectly, by organising it and promoting it in

order to attract a larger audience, including by categorising it and using targeted promotion

within it. Such services should not include services that have a main purpose other than

that of enabling users to upload and share a large amount of copyright-protected content

with the purpose of obtaining profit from that activity. The latter services include, for

instance, electronic communication services within the meaning of Directive

(EU) 2018/1972 of the European Parliament and of the Council **[1]**, as well as providers of

business-to-business cloud services and cloud services, which allow users to upload

content for their own use, such as cyberlockers, or online marketplaces the main activity of

which is online retail, and not giving access to copyright-protected content.

**1** Directive (EU) 2018/1972 of the European Parliament and of the Council of
11 December 2018 establishing the European Electronic Communications Code (OJ L 321,
17.12.2018, p. 36).

PE-CONS 51/1/19 REV 1 51

# **EN**

Providers of services such as open source software development and sharing platforms,

not-for-profit scientific or educational repositories as well as not-for-profit online

encyclopedias should also be excluded from the definition of online content-sharing

service provider. Finally, in order to ensure a high level of copyright protection, the

liability exemption mechanism provided for in this Directive should not apply to service

providers the main purpose of which is to engage in or to facilitate copyright piracy.

(63) The assessment of whether an online content-sharing service provider stores and gives

access to a large amount of copyright-protected content should be made on a case-by-case

basis and should take account of a combination of elements, such as the audience of the

service and the number of files of copyright-protected content uploaded by the users of the

service.

PE-CONS 51/1/19 REV 1 52

# **EN**

(64) It is appropriate to clarify in this Directive that online content-sharing service providers

perform an act of communication to the public or of making available to the public when

they give the public access to copyright-protected works or other protected subject matter

uploaded by their users. Consequently, online content-sharing service providers should

obtain an authorisation, including via a licensing agreement, from the relevant rightholders.

This does not affect the concept of communication to the public or of making available to

the public elsewhere under Union law, nor does it affect the possible application of

Article 3(1) and (2) of Directive 2001/29/EC to other service providers using

copyright-protected content.

(65) When online content-sharing service providers are liable for acts of communication to the

public or making available to the public under the conditions laid down in this Directive,

Article 14(1) of Directive 2000/31/EC should not apply to the liability arising from the

provision of this Directive on the use of protected content by online content-sharing

service providers. That should not affect the application of Article 14(1) of

Directive 2000/31/EC to such service providers for purposes falling outside the scope of

this Directive.

PE-CONS 51/1/19 REV 1 53

# **EN**

(66) Taking into account the fact that online content-sharing service providers give access to

content which is not uploaded by them but by their users, it is appropriate to provide for a

specific liability mechanism for the purposes of this Directive for cases in which no

authorisation has been granted. That should be without prejudice to remedies under

national law for cases other than liability for copyright infringements and to national courts

or administrative authorities being able to issue injunctions in compliance with Union law.

In particular, the specific regime applicable to new online content-sharing service

providers with an annual turnover below EUR 10 million, of which the average number of

monthly unique visitors in the Union does not exceed 5 million, should not affect the

availability of remedies under Union and national law. Where no authorisation has been

granted to service providers, they should make their best efforts in accordance with high

industry standards of professional diligence to avoid the availability on their services of

unauthorised works and other subject matter, as identified by the relevant rightholders. For

that purpose, rightholders should provide the service providers with relevant and necessary

information taking into account, among other factors, the size of rightholders and the type

of their works and other subject matter. The steps taken by online content-sharing service

providers in cooperation with rightholders should not lead to the prevention of the

availability of non-infringing content, including works or other protected subject matter the

use of which is covered by a licensing agreement, or an exception or limitation to

copyright and related rights. Steps taken by such service providers should, therefore, not

affect users who are using the online content-sharing services in order to lawfully upload

and access information on such services.

PE-CONS 51/1/19 REV 1 54

# **EN**

In addition, the obligations established in this Directive should not lead to Member States

imposing a general monitoring obligation. When assessing whether an online

content-sharing service provider has made its best efforts in accordance with the high

industry standards of professional diligence, account should be taken of whether the

service provider has taken all the steps that would be taken by a diligent operator to

achieve the result of preventing the availability of unauthorised works or other subject

matter on its website, taking into account best industry practices and the effectiveness of

the steps taken in light of all relevant factors and developments, as well as the principle of

proportionality. For the purposes of that assessment, a number of elements should be

considered, such as the size of the service, the evolving state of the art as regards existing

means, including potential future developments, to avoid the availability of different types

of content and the cost of such means for the services. Different means to avoid the

availability of unauthorised copyright-protected content could be appropriate and

proportionate depending on the type of content, and, therefore, it cannot be excluded that

in some cases availability of unauthorised content can only be avoided upon notification of

rightholders. Any steps taken by service providers should be effective with regard to the

objectives pursued but should not go beyond what is necessary to achieve the objective of

avoiding and discontinuing the availability of unauthorised works and other subject matter.

PE-CONS 51/1/19 REV 1 55

# **EN**

If unauthorised works and other subject matter become available despite the best efforts

made in cooperation with rightholders, as required by this Directive, the online

content-sharing service providers should be liable in relation to the specific works and

other subject matter for which they have received the relevant and necessary information

from rightholders, unless those providers demonstrate that they have made their best

efforts in accordance with high industry standards of professional diligence.

In addition, where specific unauthorised works or other subject matter have become

available on online content-sharing services, including irrespective of whether the best

efforts were made and regardless of whether rightholders have made available the relevant

and necessary information in advance, the online content-sharing service providers should

be liable for unauthorised acts of communication to the public of works or other subject

matter, when, upon receiving a sufficiently substantiated notice, they fail to act

expeditiously to disable access to, or to remove from their websites, the notified works or

other subject matter. Additionally, such online content-sharing service providers should

also be liable if they fail to demonstrate that they have made their best efforts to prevent

the future uploading of specific unauthorised works, based on relevant and necessary

information provided by rightholders for that purpose.

PE-CONS 51/1/19 REV 1 56

# **EN**

Where rightholders do not provide online content-sharing service providers with the

relevant and necessary information on their specific works or other subject matter, or

where no notification concerning the disabling of access to, or the removal of, specific

unauthorised works or other subject matter has been provided by rightholders, and, as a

result, those service providers cannot make their best efforts to avoid the availability of

unauthorised content on their services, in accordance with high industry standards of

professional diligence, such service providers should not be liable for unauthorised acts of

communication to the public or of making available to the public of such unidentified

works or other subject matter.

(67) Similar to Article 16(2) of Directive 2014/26/EU, this Directive provides for rules as

regards new online services. The rules provided for in this Directive are intended to take

into account the specific case of start-up companies working with user uploads to develop

new business models. The specific regime applicable to new service providers with a small

turnover and audience should benefit genuinely new businesses, and should therefore cease

to apply three years after their services first became available online in the Union. That

regime should not be abused by arrangements aimed at extending its benefits beyond the

first three years. In particular, it should not apply to newly created services or to services

provided under a new name but which pursue the activity of an already existing online

content-sharing service provider which could not benefit or no longer benefits from that

regime.

PE-CONS 51/1/19 REV 1 57

# **EN**

(68) Online content-sharing service providers should be transparent with rightholders with

regard to the steps taken in the context of cooperation. As various actions could be

undertaken by online content-sharing service providers, they should provide rightholders,

at the request of rightholders, with adequate information on the type of actions undertaken

and the way in which they are undertaken. Such information should be sufficiently specific

to provide enough transparency to rightholders, without affecting business secrets of online

content-sharing service providers. Service providers should, however, not be required to

provide rightholders with detailed and individualised information for each work or other

subject matter identified. That should be without prejudice to contractual arrangements,

which could contain more specific provisions on the information to be provided where

agreements are concluded between service providers and rightholders.

PE-CONS 51/1/19 REV 1 58

# **EN**

(69) Where online content-sharing service providers obtain authorisations, including through

licensing agreements, for the use on their service of content uploaded by the users of the

service, those authorisations should also cover the copyright relevant acts in respect of

uploads by users within the scope of the authorisation granted to the service providers, but

only in cases where those users act for non-commercial purposes, such as sharing their

content without any profit-making purpose, or where the revenue generated by their

uploads is not significant in relation to the copyright relevant acts of the users covered by

such authorisations. Where rightholders have explicitly authorised users to upload and

make available works or other subject matter on an online content-sharing service, the act

of communication to the public of the service provider is authorised within the scope of the

authorisation granted by the rightholder. However, there should be no presumption in

favour of online content-sharing service providers that their users have cleared all relevant

rights.

PE-CONS 51/1/19 REV 1 59

# **EN**

(70) The steps taken by online content-sharing service providers in cooperation with

rightholders should be without prejudice to the application of exceptions or limitations to

copyright, including, in particular, those which guarantee the freedom of expression of

users. Users should be allowed to upload and make available content generated by users

for the specific purposes of quotation, criticism, review, caricature, parody or pastiche.

That is particularly important for the purposes of striking a balance between the

fundamental rights laid down in the Charter of Fundamental Rights of the European Union

('the Charter'), in particular the freedom of expression and the freedom of the arts, and the

right to property, including intellectual property. Those exceptions and limitations should,

therefore, be made mandatory in order to ensure that users receive uniform protection

across the Union. It is important to ensure that online content-sharing service providers

operate an effective complaint and redress mechanism to support use for such specific

purposes.

PE-CONS 51/1/19 REV 1 60

# **EN**

Online content-sharing service providers should also put in place effective and expeditious

complaint and redress mechanisms allowing users to complain about the steps taken with

regard to their uploads, in particular where they could benefit from an exception or

limitation to copyright in relation to an upload to which access has been disabled or that

has been removed. Any complaint filed under such mechanisms should be processed

without undue delay and be subject to human review. When rightholders request the

service providers to take action against uploads by users, such as disabling access to or

removing content uploaded, such rightholders should duly justify their requests. Moreover,

cooperation should not lead to any identification of individual users nor to the processing

of personal data, except in accordance with Directive 2002/58/EC of the European

Parliament and of the Council **[1]** and Regulation (EU) 2016/679 of the European Parliament

and of the Council **[2]** . Member States should also ensure that users have access to

out-of-court redress mechanisms for the settlement of disputes. Such mechanisms should

allow disputes to be settled impartially. Users should also have access to a court or another

relevant judicial authority to assert the use of an exception or limitation to copyright and

related rights.

**1** 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).
**2** 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).

PE-CONS 51/1/19 REV 1 61

# **EN**

(71) As soon as possible after the date of entry into force of this Directive, the Commission, in

cooperation with Member States, should organise dialogues between stakeholders to

ensure uniform application of the obligation of cooperation between online content-sharing

service providers and rightholders and to establish best practices with regard to the

appropriate industry standards of professional diligence. For that purpose, the Commission

should consult relevant stakeholders, including users' organisations and technology

providers, and take into account developments on the market. Users' organisations should

also have access to information on actions carried out by online content-sharing service

providers to manage content online.

(72) Authors and performers tend to be in the weaker contractual position when they grant a

licence or transfer their rights, including through their own companies, for the purposes of

exploitation in return for remuneration, and those natural persons need the protection

provided for by this Directive to be able to fully benefit from the rights harmonised under

Union law. That need for protection does not arise where the contractual counterpart acts

as an end user and does not exploit the work or performance itself, which could, for

instance, be the case in some employment contracts.

PE-CONS 51/1/19 REV 1 62

# **EN**

(73) The remuneration of authors and performers should be appropriate and proportionate to the

actual or potential economic value of the licensed or transferred rights, taking into account

the author's or performer's contribution to the overall work or other subject matter and all

other circumstances of the case, such as market practices or the actual exploitation of the

work. A lump sum payment can also constitute proportionate remuneration but it should

not be the rule. Member States should have the freedom to define specific cases for the

application of lump sums, taking into account the specificities of each sector.

Member States should be free to implement the principle of appropriate and proportionate

remuneration through different existing or newly introduced mechanisms, which could

include collective bargaining and other mechanisms, provided that such mechanisms are in

conformity with applicable Union law.

(74) Authors and performers need information to assess the economic value of rights of theirs

that are harmonised under Union law. This is especially the case where natural persons

grant a licence or a transfer of rights for the purposes of exploitation in return for

remuneration. That need does not arise where the exploitation has ceased, or where the

author or performer has granted a licence to the general public without remuneration.

PE-CONS 51/1/19 REV 1 63

# **EN**

(75) As authors and performers tend to be in the 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 and accurate

information by their contractual counterparts or their successors in title is important for the

transparency and balance in the system governing the remuneration of authors and

performers. That information should be up-to-date to allow access to recent data, relevant

to the exploitation of the work or performance, and comprehensive in a way that it covers

all sources of revenues relevant to the case, including, where applicable, merchandising

revenues. As long as exploitation is ongoing, contractual counterparts of authors and

performers should provide information available to them on all modes of exploitation and

on all relevant revenues worldwide with a regularity that is appropriate in the relevant

sector, but at least annually. The information should be provided in a manner that is

comprehensible to the author or performer and it should allow the effective assessment of

the economic value of the rights in question. The transparency obligation should

nevertheless apply only where copyright relevant rights are concerned. The processing of

personal data, such as contact details and information on remuneration, that are necessary

to keep authors and performers informed in relation to the exploitation of their works and

performances, should be carried out in accordance with Article 6(1)(c) of

Regulation (EU) 2016/679.

PE-CONS 51/1/19 REV 1 64

# **EN**

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

performers also in cases where the rights have been sub-licensed to other parties who

exploit the rights, this Directive entitles authors and performers to request additional

relevant information on the exploitation of the rights, in cases where the first contractual

counterpart has provided the information available to them, but that information is not

sufficient to assess the economic value of their rights. That request should be made either

directly to sub-licensees or through the contractual counterparts of authors and performers.

Authors and performers, and their contractual counterparts, should be able to agree to keep

the shared information confidential, but authors and performers should always be able to

use the shared information for the purpose of exercising their rights under this Directive.

Member States should have the option, in compliance with Union law, to provide for

further measures to ensure transparency for authors and performers.

PE-CONS 51/1/19 REV 1 65

# **EN**

(77) When implementing the transparency obligation provided for in this Directive,

Member States should take into account the specificities of different content sectors, such

as those of the music sector, the audiovisual sector and the publishing sector, and all

relevant stakeholders should be involved when deciding on such sector-specific

obligations. Where relevant, the significance of the contribution of authors and performers

to the overall work or performance should also be considered. Collective bargaining should

be considered as an option for the relevant stakeholders to reach an agreement regarding

transparency. Such agreements should ensure that authors and performers have the same

level of transparency as or a higher level of transparency than the minimum requirements

provided for in this Directive. To enable the adaptation of existing reporting practices to

the transparency obligation, a transitional period should be provided for. It should not be

necessary to apply the transparency obligation in respect of agreements concluded between

rightholders and collective management organisations, independent management entities or

other entities subject to the national rules implementing Directive 2014/26/EU, as those

organisations or entities are already subject to transparency obligations under Article 18 of

Directive 2014/26/EU. Article 18 of Directive 2014/26/EU applies to organisations that

manage copyright or related rights on behalf of more than one rightholder for the collective

benefit of those rightholders. However, individually negotiated agreements concluded

between rightholders and those of their contractual counterparts who act in their own

interest should be subject to the transparency obligation provided for in this Directive.

PE-CONS 51/1/19 REV 1 66

# **EN**

(78) Certain contracts for the exploitation of rights harmonised at Union level are of long

duration, offering few opportunities for authors and performers to renegotiate them with

their contractual counterparts or their successors in title in the event that the economic

value of the rights turns out to be significantly higher than initially estimated. Accordingly,

without prejudice to the law applicable to contracts in Member States, a remuneration

adjustment mechanism should be provided for as regards cases where the remuneration

originally agreed under a licence or a transfer of rights clearly becomes disproportionately

low compared to the relevant revenues derived from the subsequent exploitation of the

work or fixation of the performance by the contractual counterpart of the author or

performer. All revenues relevant to the case in question, including, where applicable,

merchandising revenues, should be taken into account for the assessment of whether the

remuneration is disproportionately low. The assessment of the situation should take

account of the specific circumstances of each case, including the contribution of the author

or performer, as well as of the specificities and remuneration practices in the different

content sectors, and whether the contract is based on a collective bargaining agreement.

Representatives of authors and performers duly mandated in accordance with national law

in compliance with Union law, should be able to provide assistance to one or more authors

or performers in relation to requests for the adjustment of the contracts, also taking into

account the interests of other authors or performers where relevant.

PE-CONS 51/1/19 REV 1 67

# **EN**

Those representatives should protect the identity of the represented authors and performers

for as long as that is possible. 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. Such mechanism should not apply to contracts concluded by

entities defined in Article 3(a) and (b) of Directive 2014/26/EU or by other entities subject

to national rules implementing Directive 2014/26/EU.

(79) Authors and performers are often reluctant to enforce their rights against their contractual

partners before a court or tribunal. Member States should therefore provide for an

alternative dispute resolution procedure that addresses claims by authors and performers,

or by their representatives on their behalf, related to obligations of transparency and the

contract adjustment mechanism. For that purpose, Member States should be able to either

establish a new body or mechanism, or rely on an existing one that fulfils the conditions

established by this Directive, irrespective of whether those bodies or mechanisms are

industry-led or public, including when part of the national judiciary system. Member States

should have flexibility in deciding how the costs of the dispute resolution procedure are to

be allocated. Such alternative dispute resolution procedure should be without prejudice to

the right of parties to assert and defend their rights by bringing an action before a court.

PE-CONS 51/1/19 REV 1 68

# **EN**

(80) When authors and performers license or transfer their rights, they expect their work or

performance to be exploited. However, it could be the case that works or performances that

have been licensed or transferred are not exploited at all. Where those rights have been

transferred on an exclusive basis, authors and performers cannot turn to another partner to

exploit their works or performances. In such a case, and after a reasonable period of time

has elapsed, authors and performers should be able to benefit from a mechanism for the

revocation of rights allowing them to transfer or license their rights to another person. As

exploitation of works or performances can vary depending on the sectors, specific

provisions could be laid down at national level in order to take into account the

specificities of the sectors, such as the audiovisual sector, or of the works or performances,

in particular providing for time frames for the right of revocation. In order to protect the

legitimate interests of licensees and transferees of rights and to prevent abuses, and taking

into account that a certain amount of time is needed before a work or performance is

actually exploited, authors and performers should be able to exercise the right of

revocation in accordance with certain procedural requirements and only after a certain

period of time following the conclusion of the licence or of the transfer agreement.

Member States should be allowed to regulate the exercise of the right of revocation in the

case of works or performances involving more than one author or performer, taking into

account the relative importance of the individual contributions.

PE-CONS 51/1/19 REV 1 69

# **EN**

(81) The provisions regarding transparency, contract adjustment mechanisms and alternative

dispute resolution procedures laid down in this Directive should be of a mandatory nature,

and parties should not be able to derogate from those provisions, whether in contracts

between authors, performers and their contractual counterparts, or in agreements between

those counterparts and third parties, such as non-disclosure agreements. As a consequence,

Article 3(4) of Regulation (EC) No 593/2008 of the European Parliament and of the

Council **[1]** should apply to the effect that, where all other elements relevant to the situation at

the time of the choice of applicable law are located in one or more Member States, the

parties' choice of applicable law other than that of a Member State does not prejudice the

application of the provisions regarding transparency, contract adjustment mechanisms and

alternative dispute resolution procedures laid down in this Directive, as implemented in the

Member State of the forum.

(82) Nothing in this Directive should be interpreted as preventing holders of exclusive rights

under Union copyright law from authorising the use of their works or other subject matter

for free, including through non-exclusive free licences for the benefit of any users.

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

PE-CONS 51/1/19 REV 1 70

# **EN**

(83) Since the objective 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, the Union may adopt measures

in accordance with the principle of subsidiarity as set out in Article 5 TEU. 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 that objective.

(84) This Directive respects the fundamental rights and observes the principles recognised in

particular by the Charter. Accordingly, this Directive should be interpreted and applied in

accordance with those rights and principles.

(85) 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 set out in Articles 7 and 8, respectively, of the Charter and must be in

compliance with Directive 2002/58/EC and Regulation (EU) 2016/679.

PE-CONS 51/1/19 REV 1 71

# **EN**

(86) In accordance with the Joint Political Declaration of 28 September 2011 of Member States

and the Commission on explanatory documents **[1]**, 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:

**1** OJ C 369, 17.12.2011, p. 14.

PE-CONS 51/1/19 REV 1 72

# **EN**

## **TITLE I** **GENERAL PROVISIONS**

_Article 1_

_Subject matter and scope_

1. This Directive lays down rules which aim to harmonise further 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 to copyright and related rights, on the facilitation of licences, as

well as rules which aim to ensure a well-functioning marketplace for the exploitation of

works and other subject matter.

2. Except in the cases referred to in Article 24, 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, 2000/31/EC, 2001/29/EC, 2006/115/EC, 2009/24/EC,

2012/28/EU and 2014/26/EU.

PE-CONS 51/1/19 REV 1 73

# **EN**

_Article 2_

_Definitions_

For the purposes of this Directive, the following definitions apply:

(1) 'research organisation' means a university, including its libraries, a research institute or any

other entity, the primary goal of which is to conduct scientific research or to carry out

educational activities involving also the conduct of scientific research:

(a) on a not-for-profit basis or by reinvesting all the profits in its scientific research; or

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

in such a way that the access to the results generated by such scientific research cannot be

enjoyed on a preferential basis by an undertaking that exercises a decisive influence upon

such organisation;

(2) 'text and data mining' means any automated analytical technique aimed at analysing text

and data in digital form in order to generate information which includes but is not limited

to patterns, trends and correlations;

(3) 'cultural heritage institution' means a publicly accessible library or museum, an archive or a

film or audio heritage institution;

PE-CONS 51/1/19 REV 1 74

# **EN**

(4) 'press publication' means a collection composed mainly of literary works of a journalistic

nature, but which can also include other works or other subject matter, and which:

(a) 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;

(b) has the purpose of providing the general public with information related to news or

other topics; and

(c) is published in any media under the initiative, editorial responsibility and control of a

service provider.

Periodicals that are published for scientific or academic purposes, such as scientific

journals, are not press publications for the purposes of this Directive;

(5) 'information society service' means a service within the meaning of point (b) of

Article 1(1) of Directive (EU) 2015/1535;

PE-CONS 51/1/19 REV 1 75

# **EN**

(6) 'online content-sharing service provider' means a provider of an information society service

of which the main or one of the main purposes is to store and give the public access to a

large amount of copyright-protected works or other protected subject matter uploaded by

its users, which it organises and promotes for profit-making purposes.

Providers of services, such as not-for-profit online encyclopedias, not-for-profit

educational and scientific repositories, open source software-developing and-sharing

platforms, providers of electronic communications services as defined in Directive

(EU) 2018/1972, online marketplaces, business-to-business cloud services and cloud

services that allow users to upload content for their own use, are not 'online content

sharing service providers' within the meaning of this Directive.

PE-CONS 51/1/19 REV 1 76

# **EN**

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

_Article 3_

_Text and data mining for the purposes of scientific research_

1. Member States shall provide for an exception to the rights provided for in Article 5(a) and

Article 7(1) of Directive 96/9/EC, Article 2 of Directive 2001/29/EC, and Article 15(1) of

this Directive for reproductions and extractions made by research organisations and

cultural heritage institutions in order to carry out, for the purposes of scientific research,

text and data mining of works or other subject matter to which they have lawful access.

2. Copies of works or other subject matter made in compliance with paragraph 1 shall be

stored with an appropriate level of security and may be retained for the purposes of

scientific research, including for the verification of research results.

3. Rightholders shall be allowed to apply measures to ensure the security and integrity of the

networks and databases where the works or other subject matter are hosted. Such measures

shall not go beyond what is necessary to achieve that objective.

PE-CONS 51/1/19 REV 1 77

# **EN**

4. Member States shall encourage rightholders, research organisations and cultural heritage

institutions to define commonly agreed best practices concerning the application of the

obligation and of the measures referred to in paragraphs 2 and 3 respectively.

_Article 4_

_Exception or limitation for text and data mining_

1. Member States shall provide for an exception or limitation to the rights provided for in

Article 5(a) and Article 7(1) of Directive 96/9/EC, Article 2 of Directive 2001/29/EC,

Article 4(1)(a) and (b) of Directive 2009/24/EC and Article 15(1) of this Directive for

reproductions and extractions of lawfully accessible works and other subject matter for the

purposes of text and data mining.

2. Reproductions and extractions made pursuant to paragraph 1 may be retained for as long as

is necessary for the purposes of text and data mining.

3. The exception or limitation provided for in paragraph 1 shall apply on condition that the

use of works and other subject matter referred to in that paragraph has not been expressly

reserved by their rightholders in an appropriate manner, such as machine-readable means

in the case of content made publicly available online.

4. This Article shall not affect the application of Article 3 of this Directive.

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# **EN**

_Article 5_

_Use of works and other subject matter in digital_

_and cross-border teaching activities_

1. Member States shall provide for an exception or limitation to the rights provided for in

Article 5(a), (b), (d) and (e) and Article 7(1) of Directive 96/9/EC, Articles 2 and 3 of

Directive 2001/29/EC, Article 4(1) of Directive 2009/24/EC and Article 15(1) of this

Directive in order to allow 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, on condition that such use:

(a) takes place under the responsibility of an educational establishment, on its premises

or at other venues, or through a secure electronic environment accessible only by the

educational establishment's pupils or students and teaching staff; and

(b) is accompanied by the indication of the source, including the author's name, unless

this turns out to be impossible.

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# **EN**

2. Notwithstanding Article 7(1), Member States may provide that the exception or limitation

adopted pursuant to paragraph 1 does not apply or does not apply as regards specific uses

or types of works or other subject matter, such as material that is primarily intended for the

educational market or sheet music, to the extent that suitable licences authorising the acts

referred to in paragraph 1 of this Article and covering the needs and specificities of

educational establishments are easily available on the market.

Member States that decide to avail of the first subparagraph of this paragraph shall take the

necessary measures to ensure that the licences authorising the acts referred to in paragraph

1 of this Article are available and visible in an appropriate manner for educational

establishments.

3. The use of works and other subject matter for the sole purpose of illustration for teaching

through secure electronic environments undertaken in compliance with the provisions of

national law adopted pursuant to this Article shall be deemed to occur solely in the

Member State where the educational establishment is established.

4. Member States may provide for fair compensation for rightholders for the use of their

works or other subject matter pursuant to paragraph 1.

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# **EN**

_Article 6_

_Preservation of cultural heritage_

Member States shall provide for an exception to the rights provided for in Article 5(a) and

Article 7(1) of Directive 96/9/EC, Article 2 of Directive 2001/29/EC, Article 4(1)(a) of

Directive 2009/24/EC and Article 15(1) of this Directive, in order to allow cultural heritage

institutions to make copies of any works or other subject matter that are permanently in their

collections, in any format or medium, for purposes of preservation of such works or other subject

matter and to the extent necessary for such preservation.

_Article 7_

_Common provisions_

1. Any contractual provision contrary to the exceptions provided for in Articles 3, 5 and 6

shall be unenforceable.

2. Article 5(5) of Directive 2001/29/EC shall apply to the exceptions and limitations provided

for under this Title. The first, third and fifth subparagraphs of Article 6(4) of

Directive 2001/29/EC shall apply to Articles 3 to 6 of this Directive.

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# **EN**

## **TITLE III** **MEASURES TO IMPROVE LICENSING PRACTICES** **AND ENSURE WIDER ACCESS TO CONTENT** **Chapter 1** **Out-of-commerce works and other subject matter**

_Article 8_

_Use of out-of-commerce works and other subject matter by cultural heritage institutions_

1. Member States shall provide that a collective management organisation, in accordance

with its mandates from rightholders, may conclude a non-exclusive licence for

non-commercial purposes with a cultural heritage institution for the reproduction,

distribution, communication to the public or making available to the public of

out-of-commerce works or other subject matter that are permanently in the collection of

the institution, irrespective of whether all rightholders covered by the licence have

mandated the collective management organisation, on condition that:

(a) the collective management organisation is, on the basis of its mandates, sufficiently

representative of rightholders in the relevant type of works or other subject matter

and of the rights that are the subject of the licence; and

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(b) all rightholders are guaranteed equal treatment in relation to the terms of the licence.

2. Member States shall provide for an exception or limitation to the rights provided for in

Article 5(a), (b), (d) and (e) and Article 7(1) of Directive 96/9/EC, Articles 2 and 3 of

Directive 2001/29/EC, Article 4(1) of Directive 2009/24/EC, and Article 15(1) of this

Directive, in order to allow cultural heritage institutions to make available, for

non-commercial purposes, out-of-commerce works or other subject matter that are

permanently in their collections, on condition that:

(a) the name of the author or any other identifiable rightholder is indicated, unless this

turns out to be impossible; and

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

3. Member States shall provide that the exception or limitation provided for in paragraph 2

only applies to types of works or other subject matter for which no collective management

organisation that fulfils the condition set out in point (a) of paragraph 1 exists.

4. Member States shall provide that all rightholders may, at any time, easily and effectively,

exclude their works or other subject matter from the licensing mechanism set out in

paragraph 1 or from the application of the exception or limitation provided for in

paragraph 2, either in general or in specific cases, including after the conclusion of a

licence or after the beginning of the use concerned.

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# **EN**

5. A work or other subject matter shall be deemed to be out of commerce when it can be

presumed in good faith that the whole work or other subject matter is not available to the

public through customary channels of commerce, after a reasonable effort has been made

to determine whether it is available to the public.

Member States may provide for specific requirements, such as a cut-off date, to determine

whether works and other subject matter can be licensed in accordance with paragraph 1 or

used under the exception or limitation provided for in paragraph 2. Such requirements shall

not extend beyond what is necessary and reasonable, and shall not preclude being able to

determine that a set of works or other subject matter as a whole is out of commerce, when

it is reasonable to presume that all works or other subject matter are out of commerce.

6. Member States shall provide that the licences referred to in paragraph 1 are to be sought

from a collective management organisation that is representative for the Member State

where the cultural heritage institution is established.

7. This Article shall not apply to sets of out-of-commerce works or other subject matter if, on

the basis of the reasonable effort referred to in paragraph 5, there is evidence that such sets

predominantly consist of:

(a) works or other subject matter, other than cinematographic or audiovisual works, first

published or, in the absence of publication, first broadcast in a third country;

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(b) cinematographic or audiovisual works, of which the producers have their

headquarters or habitual residence in a third country; or

(c) works or other subject matter of third country nationals, where after a reasonable

effort no Member State or third country could be determined pursuant to points (a)

and (b).

By way of derogation from the first subparagraph, this Article shall apply where the

collective management organisation is sufficiently representative, within the meaning of

point (a) of paragraph 1, of rightholders of the relevant third country.

_Article 9_

_Cross-border uses_

1. Member States shall ensure that licences granted in accordance with Article 8 may allow

the use of out-of-commerce works or other subject matter by cultural heritage institutions

in any Member State.

2. The uses of works and other subject matter under the exception or limitation provided for

in Article 8(2) shall be deemed to occur solely in the Member State where the cultural

heritage institution undertaking that use is established.

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# **EN**

_Article 10_

_Publicity measures_

1. Member States shall ensure that information from cultural heritage institutions, collective

management organisations or relevant public authorities, for the purposes of the

identification of the out-of-commerce works or other subject matter, covered by a licence

granted in accordance with Article 8(1), or used under the exception or limitation provided

for in Article 8(2), as well as information about the options available to rightholders as

referred to in Article 8(4), and, as soon as it is available and where relevant, information on

the parties to the licence, the territories covered and the uses, is made permanently, easily

and effectively accessible on a public single online portal from at least six months before

the works or other subject matter are distributed, communicated to the public or made

available to the public in accordance with the licence or under the exception or limitation.

The portal shall be established and managed by the European Union Intellectual Property

Office in accordance with Regulation (EU) No 386/2012.

2. Member States shall provide that, if necessary for the general awareness of rightholders,

additional appropriate publicity measures are taken regarding the ability of collective

management organisations to license works or other subject matter in accordance with

Article 8, the licences granted, the uses under the exception or limitation provided for in

Article 8(2) and the options available to rightholders as referred to in Article 8(4).

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# **EN**

The appropriate publicity measures referred to in the first subparagraph of this paragraph

shall be taken in the Member State where the licence is sought in accordance with

Article 8(1) or, for uses under the exception or limitation provided for in Article 8(2), in

the Member State where the cultural heritage institution is established. If there is evidence,

such as the origin of the works or other subject matter, to suggest that the awareness of

rightholders could be more efficiently raised in other Member States or third countries,

such publicity measures shall also cover those Member States and third countries.

_Article 11_

_Stakeholder dialogue_

Member States shall consult rightholders, collective management organisations and cultural

heritage institutions in each sector before establishing specific requirements pursuant to

Article 8(5), and shall encourage regular dialogue between representative users' and rightholders'

organisations, including collective management organisations, and any other relevant stakeholder

organisations, on a sector-specific basis, to foster the relevance and usability of the licensing

mechanisms set out in Article 8(1) and to ensure that the safeguards for rightholders referred to in

this Chapter are effective.

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# **EN**

## **Chapter 2** **Measures to facilitate collective licensing**

_Article 12_

_Collective licensing with an extended effect_

1. Member States may provide, as far as the use on their territory is concerned and subject to

the safeguards provided for in this Article, that where a collective management

organisation that is subject to the national rules implementing Directive 2014/26/EU, in

accordance with its mandates from rightholders, enters into a licensing agreement for the

exploitation of works or other subject matter:

(a) such an agreement can be extended to apply to the rights of rightholders who have

not authorised that collective management organisation to represent them by way of

assignment, licence or any other contractual arrangement; or

(b) with respect to such an agreement, the organisation has a legal mandate or is

presumed to represent rightholders who have not authorised the organisation

accordingly.

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# **EN**

2. Member States shall ensure that the licensing mechanism referred to in paragraph 1 is only

applied within well-defined areas of use, where obtaining authorisations from rightholders

on an individual basis is typically onerous and impractical to a degree that makes the

required licensing transaction unlikely, due to the nature of the use or of the types of works

or other subject matter concerned, and shall ensure that such licensing mechanism

safeguards the legitimate interests of rightholders.

3. For the purposes of paragraph 1, Member States shall provide for the following safeguards:

(a) the collective management organisation is, on the basis of its mandates, sufficiently

representative of rightholders in the relevant type of works or other subject matter

and of the rights which are the subject of the licence, for the relevant Member State;

(b) all rightholders are guaranteed equal treatment, including in relation to the terms of

the licence;

(c) rightholders who have not authorised the organisation granting the licence may at

any time easily and effectively exclude their works or other subject matter from the

licensing mechanism established in accordance with this Article; and

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(d) appropriate publicity measures are taken, starting from a reasonable period before the

works or other subject matter are used under the licence, to inform rightholders about

the ability of the collective management organisation to license works or other

subject matter, about the licensing taking place in accordance with this Article and

about the options available to rightholders as referred to in point (c). Publicity

measures shall be effective without the need to inform each rightholder individually.

4. This Article does not affect the application of collective licensing mechanisms with an

extended effect in accordance with other provisions of Union law, including provisions

that allow exceptions or limitations.

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

Article 7 of Directive 2014/26/EU shall apply to the licensing mechanism provided for in

this Article.

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# **EN**

5. Where a Member State provides in its national law for a licensing mechanism in

accordance with this Article, that Member State shall inform the Commission about the

scope of the corresponding national provisions, about the purposes and types of licences

that may be introduced under those provisions, about the contact details of organisations

issuing licences in accordance with that licensing mechanism, and about the means by

which information on the licensing and on the options available to rightholders as referred

to in point (c) of paragraph 3 can be obtained. The Commission shall publish that

information.

6. Based on the information received pursuant to paragraph 5 of this Article and on the

discussions within the contact committee established in Article 12(3) of

Directive 2001/29/EC, the Commission shall, by 10 April 2021, submit to the European

Parliament and to the Council a report on the use in the Union of the licensing mechanisms

referred to in paragraph 1 of this Article, their impact on licensing and rightholders,

including rightholders who are not members of the organisation granting the licences or

who are nationals of, or resident in, another Member State, their effectiveness in

facilitating the dissemination of cultural content, and their impact on the internal market,

including the cross-border provision of services and competition. That report shall be

accompanied, if appropriate, by a legislative proposal, including as regards the

cross-border effect of such national mechanisms.

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# **EN**

## **Chapter 3** **Access to and availability of audiovisual works** **on video-on-demand platforms**

_Article 13_

_Negotiation mechanism_

Member States shall ensure that parties facing difficulties related to the licensing of rights when

seeking to conclude an agreement for the purpose of making available audiovisual works on

video-on-demand services may rely on the assistance of an impartial body or of mediators. The

impartial body established or designated by a Member State for the purpose of this Article and

mediators shall provide assistance to the parties with their negotiations and help the parties reach

agreements, including, where appropriate, by submitting proposals to them.

Member States shall notify the Commission of the body or mediators referred to in the first

paragraph no later than … [24 months after the date of entry into force of this Directive]. Where

Member States have chosen to rely on mediation, the notification to the Commission shall at least

include, when available, the source where relevant information on the mediators entrusted can be

found.

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# **EN**

## **Chapter 4** **Works of visual art in the public domain**

_Article 14_

_Works of visual art in the public domain_

Member States shall provide that, when the term of protection of a work of visual art has expired,

any material resulting from an act of reproduction of that work is not subject to copyright or related

rights, unless the material resulting from that act of reproduction is original in the sense that it is the

author's own intellectual creation.

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# **EN**

## **TITLE IV** **MEASURES TO ACHIEVE A WELL-FUNCTIONING** **MARKETPLACE FOR COPYRIGHT** **Chapter 1** **Rights in publications**

_Article 15_

_Protection of press publications concerning online uses_

1. Member States shall provide publishers of press publications established in a

Member State with the rights provided for in Article 2 and Article 3(2) of Directive

2001/29/EC for the online use of their press publications by information society service

providers.

The rights provided for in the first subparagraph shall not apply to private or non

commercial uses of press publications by individual users.

The protection granted under the first subparagraph shall not apply to acts of hyperlinking.

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# **EN**

The rights provided for in the first subparagraph shall not apply in respect of the use of

individual words or very short extracts of a press publication.

2. The rights provided for 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. The rights provided for in

paragraph 1 shall not be invoked against those authors and other rightholders and, in

particular, shall not deprive them of their right to exploit their works and other subject

matter independently from the press publication in which they are incorporated.

When a work or other subject matter is incorporated in a press publication on the basis of a

non-exclusive licence, the rights provided for in paragraph 1 shall not be invoked to

prohibit the use by other authorised users. The rights provided for in paragraph 1 shall not

be invoked to prohibit the use of works or other subject matter for which protection has

expired.

3. Articles 5 to 8 of Directive 2001/29/EC, Directive 2012/28/EU and Directive

(EU) 2017/1564 of the European Parliament of the Council **[1]** shall apply mutatis mutandis

in respect of the rights provided for in paragraph 1 of this Article.

**1** Directive (EU) 2017/1564 of the European Parliament and of the Council of
13 September 2017 on certain permitted uses of certain 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
(OJ L 242, 20.9.2017, p. 6).

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4. The rights provided for in paragraph 1 shall expire two years after the press publication is

published. That term shall be calculated from 1 January of the year following the date on

which that press publication is published.

Paragraph 1 shall not apply to press publications first published before … [date of entry

into force of this Directive].

5. Member States shall provide that authors of works incorporated in a press publication

receive an appropriate share of the revenues that press publishers receive for the use of

their press publications by information society service providers.

_Article 16_

_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 licence constitutes a sufficient legal basis for the publisher to be entitled to a share

of the compensation for the use of the work made under an exception or limitation to the transferred

or licensed right.

The first paragraph shall be without prejudice to existing and future arrangements in Member States

concerning public lending rights.

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# **EN**

## **Chapter 2** **Certain uses of protected content by online services**

_Article 17_

_Use of protected content by online content-sharing service providers_

1. Member States shall provide that an online content-sharing service provider performs an

act of communication to the public or an act of making available to the public for the

purposes of this Directive when it gives the public access to copyright-protected works or

other protected subject matter uploaded by its users.

An online content-sharing service provider shall therefore obtain an authorisation from the

rightholders referred to in Article 3(1) and (2) of Directive 2001/29/EC, for instance by

concluding a licensing agreement, in order to communicate to the public or make available

to the public works or other subject matter.

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# **EN**

2. Member States shall provide that, where an online content-sharing service provider obtains

an authorisation, for instance by concluding a licensing agreement, that authorisation shall

also cover acts carried out by users of the services falling within the scope of Article 3 of

Directive 2001/29/EC when they are not acting on a commercial basis or where their

activity does not generate significant revenues.

3. When an online content-sharing service provider performs an act of communication to the

public or an act of making available to the public under the conditions laid down in this

Directive, the limitation of liability established in Article 14(1) of Directive 2000/31/EC

shall not apply to the situations covered by this Article.

The first subparagraph of this paragraph shall not affect the possible application of

Article 14(1) of Directive 2000/31/EC to those service providers for purposes falling

outside the scope of this Directive.

4. If no authorisation is granted, online content-sharing service providers shall be liable for

unauthorised acts of communication to the public, including making available to the

public, of copyright-protected works and other subject matter, unless the service providers

demonstrate that they have:

(a) made best efforts to obtain an authorisation, and

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# **EN**

(b) made, in accordance with high industry standards of professional diligence, best

efforts to ensure the unavailability of specific works and other subject matter for

which the rightholders have provided the service providers with the relevant and

necessary information; and in any event

(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the

rightholders, to disable access to, or to remove from their websites, the notified

works or other subject matter, and made best efforts to prevent their future uploads in

accordance with point (b).

5. In determining whether the service provider has complied with its obligations under

paragraph 4, and in light of the principle of proportionality, the following elements, among

others, shall be taken into account:

(a) the type, the audience and the size of the service and the type of works or other

subject matter uploaded by the users of the service; and

(b) the availability of suitable and effective means and their cost for service providers.

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# **EN**

6. Member States shall provide that, in respect of new online content-sharing service

providers the services of which have been available to the public in the Union for less than

three years and which have an annual turnover below EUR 10 million, calculated in

accordance with Commission Recommendation 2003/361/EC **[1]**, the conditions under the

liability regime set out in paragraph 4 are limited to compliance with point (a) of

paragraph 4 and to acting expeditiously, upon receiving a sufficiently substantiated notice,

to disable access to the notified works or other subject matter or to remove those works or

other subject matter from their websites.

Where the average number of monthly unique visitors of such service providers exceeds

5 million, calculated on the basis of the previous calendar year, they shall also demonstrate

that they have made best efforts to prevent further uploads of the notified works and other

subject matter for which the rightholders have provided relevant and necessary

information.

7. The cooperation between online content-sharing service providers and rightholders shall

not result in the prevention of the availability of works or other subject matter uploaded by

users, which do not infringe copyright and related rights, including where such works or

other subject matter are covered by an exception or limitation.

**1** Commission Recommendation of 6 May 2003 concerning the definition of micro, small and
medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).

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# **EN**

Member States shall ensure that users in each Member State are able to rely on any of the

following existing exceptions or limitations when uploading and making available content

generated by users on online content-sharing services:

(a) quotation, criticism, review;

(b) use for the purpose of caricature, parody or pastiche.

8. The application of this Article shall not lead to any general monitoring obligation.

Member States shall provide that online content-sharing service providers provide

rightholders, at their request, with adequate information on the functioning of their

practices with regard to the cooperation referred to in paragraph 4 and, where licensing

agreements are concluded between service providers and rightholders, information on the

use of content covered by the agreements.

9. Member States shall provide that online content-sharing service providers put in place an

effective and expeditious complaint and redress mechanism that is available to users of

their services in the event of disputes over the disabling of access to, or the removal of,

works or other subject matter uploaded by them.

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Where rightholders request to have access to their specific works or other subject matter

disabled or to have those works or other subject matter removed, they shall duly justify the

reasons for their requests. Complaints submitted under the mechanism provided for in the

first subparagraph shall be processed without undue delay, and decisions to disable access

to or remove uploaded content shall be subject to human review. Member States shall also

ensure that out-of-court redress mechanisms are available for the settlement of disputes.

Such mechanisms shall enable disputes to be settled impartially and shall not deprive the

user of the legal protection afforded by national law, without prejudice to the rights of

users to have recourse to efficient judicial remedies. In particular, Member States shall

ensure that users have access to a court or another relevant judicial authority to assert the

use of an exception or limitation to copyright and related rights.

This Directive shall in no way affect legitimate uses, such as uses under exceptions or

limitations provided for in Union law, and shall not lead to any identification of individual

users nor to the processing of personal data, except in accordance with

Directive 2002/58/EC and Regulation (EU) 2016/679.

Online content-sharing service providers shall inform their users in their terms and

conditions that they can use works and other subject matter under exceptions or limitations

to copyright and related rights provided for in Union law.

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# **EN**

10. As of … [date of entry into force of this Directive] the Commission, in cooperation with

the Member States, shall organise stakeholder dialogues to discuss best practices for

cooperation between online content-sharing service providers and rightholders. The

Commission shall, in consultation with online content-sharing service providers,

rightholders, users' organisations and other relevant stakeholders, and taking into account

the results of the stakeholder dialogues, issue guidance on the application of this Article, in

particular regarding the cooperation referred to in paragraph 4. When discussing best

practices, special account shall be taken, among other things, of the need to balance

fundamental rights and of the use of exceptions and limitations. For the purpose of the

stakeholder dialogues, users' organisations shall have access to adequate information from

online content-sharing service providers on the functioning of their practices with regard to

paragraph 4.

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# **EN**

## **Chapter 3** **Fair remuneration in exploitation contracts** **of authors and performers**

_Article 18_

_Principle of appropriate and proportionate remuneration_

1. Member States shall ensure that where authors and performers license or transfer their

exclusive rights for the exploitation of their works or other subject matter, they are entitled

to receive appropriate and proportionate remuneration.

2. In the implementation in national law of the principle set out in paragraph 1,

Member States shall be free to use different mechanisms and take into account the

principle of contractual freedom and a fair balance of rights and interests.

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_Article 19_

_Transparency obligation_

1. Member States shall ensure that authors and performers receive on a regular basis, at least

once a year, and taking into account the specificities of each sector, up to date, relevant and

comprehensive information on the exploitation of their works and performances from the

parties to whom they have licensed or transferred their rights, or their successors in title, in

particular as regards modes of exploitation, all revenues generated and remuneration due.

2. Member States shall ensure that, where the rights referred to in paragraph 1 have

subsequently been licensed, authors and performers or their representatives shall, at their

request, receive from sub-licensees additional information, in the event that their first

contractual counterpart does not hold all the information that would be necessary for the

purposes of paragraph 1.

Where that additional information is requested, the first contractual counterpart of authors

and performers shall provide information on the identity of those sub-licensees.

Member States may provide that any request to sub-licensees pursuant to the first

subparagraph is made directly or indirectly through the contractual counterpart of the

author or the performer.

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3. The obligation set out in paragraph 1 shall be proportionate and effective in ensuring a

high level of transparency in every sector. Member States may provide that in duly

justified cases where the administrative burden resulting from the obligation set out in

paragraph 1 would become disproportionate in the light of the revenues generated by the

exploitation of the work or performance, the obligation is limited to the types and level of

information that can reasonably be expected in such cases.

4. Member States may decide that the obligation set out in paragraph 1 of this Article does

not apply when the contribution of the author or performer is not significant having regard

to the overall work or performance, unless the author or performer demonstrates that he or

she requires the information for the exercise of his or her rights under Article 20(1) and

requests the information for that purpose.

5. Member States may provide that, for agreements subject to or based on collective

bargaining agreements, the transparency rules of the relevant collective bargaining

agreement are applicable, on condition that those rules meet the criteria provided for in

paragraphs 1 to 4.

6. Where Article 18 of Directive 2014/26/EU is applicable, the obligation laid down in

paragraph 1 of this Article shall not apply in respect of agreements concluded by entities

defined in Article 3(a) and (b) of that Directive or by other entities subject to the national

rules implementing that Directive.

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_Article 20_

_Contract adjustment mechanism_

1. Member States shall ensure that, in the absence of an applicable collective bargaining

agreement providing for a mechanism comparable to that set out in this Article, authors

and performers or their representatives are entitled to claim additional, appropriate and fair

remuneration from the party with whom they entered into a contract for the exploitation of

their rights, or from the successors in title of such party, when the remuneration originally

agreed turns out to be disproportionately low compared to all the subsequent relevant

revenues derived from the exploitation of the works or performances.

2. Paragraph 1 of this Article shall not apply to agreements concluded by entities defined in

Article 3(a) and (b) of Directive 2014/26/EU or by other entities that are already subject to

the national rules implementing that Directive.

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# **EN**

_Article 21_

_Alternative dispute resolution procedure_

Member States shall provide that disputes concerning the transparency obligation under Article 19

and the contract adjustment mechanism under Article 20 may be submitted to a voluntary,

alternative dispute resolution procedure. Member States shall ensure that representative

organisations of authors and performers may initiate such procedures at the specific request of one

or more authors or performers.

_Article 22_

_Right of revocation_

1. Member States shall ensure that where an author or a performer has licensed or transferred

his or her rights in a work or other protected subject matter on an exclusive basis, the

author or performer may revoke in whole or in part the licence or the transfer of rights

where there is a lack of exploitation of that work or other protected subject matter.

2. Specific provisions for the revocation mechanism provided for in paragraph 1 may be

provided for in national law, taking into account the following:

(a) the specificities of the different sectors and the different types of works and

performances; and

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(b) where a work or other subject matter contains the contribution of more than one

author or performer, the relative importance of the individual contributions, and the

legitimate interests of all authors and performers affected by the application of the

revocation mechanism by an individual author or performer.

Member States may exclude works or other subject matter from the application of the

revocation mechanism if such works or other subject matter usually contain contributions

of a plurality of authors or performers.

Member States may provide that the revocation mechanism can only apply within a

specific time frame, where such restriction is duly justified by the specificities of the sector

or of the type of work or other subject matter concerned.

Member States may provide that authors or performers can choose to terminate the

exclusivity of the contract instead of revoking the licence or transfer of the rights.

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3. Member States shall provide that the revocation provided for in paragraph 1 may only be

exercised after a reasonable time following the conclusion of the licence or the transfer of

the rights. The author or performer shall notify the person to whom the rights have been

licensed or transferred and set an appropriate deadline by which the exploitation of the

licensed or transferred rights is to take place. After the expiry of that deadline, the author

or performer may choose to terminate the exclusivity of the contract instead of revoking

the licence or the transfer of the rights.

4. Paragraph 1 shall not apply if the lack of exploitation is predominantly due to

circumstances that the author or the performer can reasonably be expected to remedy.

5. Member States may provide that any contractual provision derogating from the revocation

mechanism provided for in paragraph 1 is enforceable only if it is based on a collective

bargaining agreement.

_Article 23_

_Common provisions_

1. Member States shall ensure that any contractual provision that prevents compliance with

Articles 19, 20 and 21 shall be unenforceable in relation to authors and performers.

2. Members States shall provide that Articles 18 to 22 of this Directive do not apply to

authors of a computer program within the meaning of Article 2 of Directive 2009/24/EC.

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## **TITLE V** **FINAL PROVISIONS**

_Article 24_

_Amendments to Directives 96/9/EC and 2001/29/EC_

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 limitations provided for in Directive (EU) … of the European Parliament

and of the Council [] ;

________________


Directive (EU) 2019/… of the European Parliament and of the Council of …
on copyright and related rights in the Digital Single Market and amending
Directives 96/9/EC and 2001/29/EC (OJ …).'.

 OJ, please insert the number, date and OJ reference of this Directive (PE-CONS 51/19 2016/0280 (COD)).

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(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 limitations provided for in Directive (EU) … [] ;'.

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 limitations provided for in Directive (EU) … of the European

Parliament and of the Council [] ;

________________


Directive (EU) 2019/… of the European Parliament and of the Council of …
on copyright and related rights in the Digital Single Market and amending
Directives 96/9/EC and 2001/29/EC (OJ …).'.

 OJ: Please insert the number of this Directive (PE-CONS 51/19 - 2016/0280 (COD)).
 OJ: Please insert number, date and OJ reference of this Directive (PE-CONS 51/19 2016/0280 (COD)).

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(b) In Article 5(3), point (a) is replaced by the following:

'(a) use for the sole purpose of illustration for teaching or scientific research, as

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 limitations provided for

in Directive (EU) … [] ;'.

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

'(e) to examine the impact of the transposition of Directive (EU) … [] on the

functioning of the internal market and to highlight any transposition

difficulties;

(f) to facilitate the exchange of information on relevant developments in

legislation and case law as well as on the practical application of the measures

taken by Member States to implement Directive (EU) … [] ;

(g) to discuss any other questions arising from the application of

Directive (EU) … [] .'.

 OJ: Please insert the number of this Directive (PE-CONS 51/19 - 2016/0280 (COD)).

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_Article 25_

_Relationship with exceptions and limitations_

_provided for in other directives_

Member States may adopt or maintain in force broader provisions, compatible with the exceptions

and limitations provided for in Directives 96/9/EC and 2001/29/EC, for uses or fields covered by

the exceptions or limitations provided for in this Directive.

_Article 26_

_Application in time_

1. This Directive shall apply in respect of all works and other subject matter that are protected

by national law in the field of copyright on or after … [24 months after the date of entry

into force of this Directive].

2. This Directive shall apply without prejudice to any acts concluded and rights acquired

before … [24 months after the date of entry into force of this Directive].

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_Article 27_

_Transitional provision_

Agreements for the licence or transfer of rights of authors and performers shall be subject to the

transparency obligation set out in Article 19 as from … [36 months after the date of entry into force

of this Directive].

_Article 28_

_Protection of personal data_

The processing of personal data carried out within the framework of this Directive shall be carried

out in compliance with Directive 2002/58/EC and Regulation (EU) 2016/679.

_Article 29_

_Transposition_

1. Member States shall bring into force the laws, regulations and administrative provisions

necessary to comply with this Directive by …  24 months after the date of entry into force

of this Directive]. They shall immediately inform the Commission thereof.

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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. The methods of making such reference shall be laid down by Member States.

2. 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 30_

_Review_

1. No sooner than … [seven years after the date of entry into force of this Directive], 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.

The Commission shall, by … [five years after the date of entry into force of this Directive],

assess the impact of the specific liability regime set out in Article 17 applicable to online

content-sharing service providers that have an annual turnover of less than EUR 10 million

and the services of which have been available to the public in the Union for less than three

years under Article 17(6) and, if appropriate, take action in accordance with the

conclusions of its assessment.

2. Member States shall provide the Commission with the necessary information for the

preparation of the report referred to in paragraph 1.

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_Article 31_

_Entry into force_

This Directive shall enter into force on the twentieth day following that of its publication in the

_Official Journal of the European Union_ .

_Article 32_

_Addressees_

This Directive is addressed to the Member States.

Done at Strasbourg,

_For the European Parliament_ _For the Council_

_The President_ _The President_

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