February 18, 2019

The next step is formal approval by the EP and the Council. Further lobbying is therefore expected on this controversial legislation which would establish (1) new mandatory exceptions including for text and data mining (2) an enabling provision for extended collective licensing; (3) a mechanism for out-of-commerce works; (4) a (voluntary) mechanism for VOD platforms meant to encourage cross-border licensing; (5) a related right for press publishers which has been significantly watered down during the legislative process; (6) a provision ensuring that publishers receive a share of private copy and reprography levies; (7) a provision on platform obligations meant to bridge the so-called ‘value-gap’ by confirming that certain online content sharing service providers infringe the communication to the public right and are not eligible for the hosting provider exemption (Article 14 of the E-Commerce) while creating a new safe harbour for such platforms and a lighter regime for start-ups; and, (8) a series of new contractual entitlements for authors and performers (a remuneration principle, transparency obligation or audit rights, a contract readjustment mechanism, and a revocation right) which are desgined to ensure that these creators are better remunerated.

According to the European Parliament press release, the deal aims to ensure that the rights and obligations of copyright law also apply to the internet, whilst ensuring that the internet remains a space for freedom of expression. Snippets from news articles will therefore continue to be able to be shared, as will Gifs and memes.

Essentially, according to the EP, the aim is to enable rights holders, notably musicians, performers and script authors, as well as news publishers, to be able to negotiate better remuneration deals for the use of their works featured on internet platforms.

Uploading protected works for the purposes of quotation, criticism, review, caricature, parody or pastiche will also be protected, ensuring that memes and Gifs will continue to be available and shareable on online platforms.

The text also specifies that uploading works to online encyclopaedias in a non-commercial way, such as Wikipedia, or open source software platforms such as GitHub, will be excluded. Start-up platforms will be subject to lighter obligations than more established ones.

Authors and performers will be able to claim additional remuneration from the distributor exploiting their rights when the remuneration originally agreed is “disproportionately low compared to the benefits derived by the distributor”.

The European Parliament reminds readers that currently internet companies have little incentive to sign fair licensing agreements with rights holders because they are not considered liable for the content that their users upload. They are only obliged to remove infringing content when a rights holder asks them to do so. However, this is cumbersome for rights holders and does not guarantee them a fair revenue, the Parliament says. Making internet companies liable will enhance rights holders’ ability to secure fair licensing agreements.

The deal must now be approved by Council representatives and the European Parliament plenary. To read the European Parliament’s press release in full, click here. To read the Commission’s press release, click here.