Article 11 - Publisher’s right
The EPP Group has strong concerns that the growth of traditional media in the digital sphere is challenged by some news aggregators and online service providers that develop their activities by using right-holders’ content without contributing to sustain the investments in its creation and without ensuring the fair remuneration of the creators. The EPP Group is of the opinion that a specific right for publishers provides more legal certainty regarding licensing and enforcement of rights. Strengthening the press publishers’ position also contributes to safeguarding quality journalism over fake news.
Therefore, our Group is in favour of a genuine right for press publishers as proposed by the Commission in Art. 11.
Article 13 - Value Gap
Platforms are of immense importance for media pluralism and freedom of expression. Nevertheless, freedom of artistic creation constitutes another aspect of a free society and in this respect, the emergence of online platforms also creates difficulties regarding the enforcement of intellectual property rights.
The EPP Group is in favour of a reassessment of the liability of service providers with regards to their use of copyright-protected content and of the introduction of rules on the exercise of due diligence and duty of care throughout the creative process. Regarding the relationships between platforms and right-holders, the EPP Group acknowledges the need to address the fact that intermediaries often make profit with content that they do not create and that are not always shared fairly with the concerned creators (value gap). Moreover, these intermediaries have become major channels for consumption of online content which operate in direct competition with other service providers who conclude licences with right-holders.
Therefore, we support the general idea encapsulated in the Commission proposal on Art. 13 that platforms which store and give access to copyright-protected content uploaded by their users and therefore compete with licensed online content services should be liable for their use of copyrighted content and therefore obliged to enter into licensing agreements with the right-holders.
To this aim, it needs to be clarified that these platforms should engage in ‘communication to the public’ in the copyright sense when they are actively and directly involved in allowing users to upload works, in making works available and in promoting works to the public. Furthermore, it has to be made clear that platforms which communicate to the public do not fall under the safe harbour clause of Art. 14 of the e-Commerce Directive and are therefore not exempt from copyright liability.
A platform which communicates to the public and which has not entered licensing agreements infringes intellectual property rights and should be put under the duty of care to take adequate and proportionate measures to prevent the availability of unlicensed copyright-protected content.
These measures have to be balanced and should not undermine the freedom of expression. They should not entail a general monitoring obligation for platforms. Right-holders shall contribute to the functioning of these measures. Users shall be offered the possibility to appeal to the removal of their content.
Article 3 - Text and data mining exception
The EPP Group recognises the potential of content mining techniques to contribute to breakthroughs in research and pronounces itself in favour of a Text-and-Data-Mining (TDM) exception for research organisations who have lawful access, as proposed by the Commission.
We consider that it would also be appropriate to include Public Private Partnerships (PPPs) where the research is in the public interest and provided that the results are made publicly available into the scope of the exception.
Our Group is not in favour of widening the scope beyond this as the risk of interference with a well-functioning licensing market is too high and might not be justified by the Berne Three Step Test, as they would conflict with a normal exploitation of the work or other subject matter and would unreasonably prejudice the legitimate interests of the right-holder.
User generated content (UGC) is more and more widespread and users sometimes complain about a lack of legal certainty. We are not in favour of a new specific UGC exception: there are already exceptions in place (e.g. citation or parody exceptions) which cover most cases of UGC. A wide UGC exception would not pass the Berne Three Step Test and also goes against our commitment regarding the value gap in Art. 13 as platforms could use this exception against right-holders when negotiating licenses, leading to an even bigger diversion of value away from right-holders towards online platforms.
The EPP Group nevertheless acknowledges the concerns of users and is open to discuss this topic further to see how the uncertainties around the use of works within UGC could be addressed, while respecting the commitments of our Group regarding the value gap.
EPP Group Members are not in favour of a mandatory panorama exception in the Digital Single Market Copyright Directive. Regulating panorama freedom should be left to the Member States.