The European Council’s permanent representatives committee (Coreper) has agreed its position on a draft directive aimed at adapting EU copyright rules to the digital environment. The common position will serve as a mandate for the presidency of the Council to start negotiations with the European Parliament, once the latter has agreed its own position.
“All kinds of content are today easily made available online,” noted Boil Banov, minister of culture of Bulgaria. “The dissemination of creative content through the Internet encourages cultural diversity. However, this has to be balanced against an appropriate level of protection and fair remuneration for those creating the content.”
The main objective of the directive is to modernise the European copyright framework and adapt it to the requirements of the digital age. By contributing to the harmonisation of practises across member states, it will also increase legal certainty in the digital single market.
The directive seeks to strike the right balance between the remuneration received by authors and performers and the profits made by Internet platforms when they make their works accessible. This difference is known as the value gap.
The Council text targets online service providers whose main purpose (or one of whose main purposes) is to provide access to a large amount of copyright-protected content uploaded by their users for the purpose of making profits from organising and promoting it.
It would not include services such as Internet access providers, providers of cloud services which allow users, including businesses, to upload content for their own use, or online marketplaces whose main activity is online retail and which do not give access to copyright protected content.
The Council text encourages collaboration between online content sharing service providers and rightsholders. Service providers will have to obtain authorisation from rightsholders. When no authorisation has been given, for example because rightsholders do not want to conclude a licence, the service provider will have to prevent the availability of the works identified by rightsholders. Otherwise, they will be considered to be liable for copyright infringement. Nevertheless, exemptions from liability may be granted to platforms under certain conditions linked notably to their size.
The European Broadcasting Union (EBU) has expressed its disappointment at the common approach agreed by the Council of Ministers.
According to the EBU, following weeks of discussions, the Council, despite the call made by several Member States, has failed to create a sensible balance between providing transparency to authors and performers on the one hand, and the workability and pragmatism required on the other.
While useful exemptions have been introduced, the EBU is still concerned by the obligation to report automatically (and individually) to authors and performers on the use of their works at least once a year.
The EBU had outlined how this agreed approach would place an unprecedented burden on the creative industries at a time when they are already facing significant market disruption. Implementing this obligation would be costly and time-consuming and would, in the end, divert money from new investments in content.
According to the EBU, the proposed new Directive will place huge administrative burdens on the audiovisual sector. It needs to be remembered that broadcasters can be managing as many as 250,000 contracts every year with individual rightsholders.
EBU Head of European Affairs Nicola Frank said: “For EBU Members this is a very disappointing conclusion. Member States had ample opportunity to ensure pragmatism and common sense but unfortunately the conclusion will result in cumbersome bureaucratic procedures for our Members.
“We are disappointed that the call made from the EBU for a more balanced approach has not been taken on board. Whilst we support the principles of transparency and also fair remuneration, this conclusion is simply not practical and realistic in its ambition.
“Public service media play a unique role within our societies, investing over €16 billion in content every year. The capacity of our Members to continue to invest would be seriously challenged if costly transparency requirements were to be established and implemented.”