After last weeks inconclusive “final” trilogue, the discussions about the EU copyright reform package are paused for their third (!!) winter break. When they resume in January under the Romanian EU presidency the negotiators will be under a lot of pressure to find a politically viable compromise on Articles 13 and 11 and a few other controversial parts of the proposal. In the shadow of these more controversial elements of the proposal the negotiators have managed to provisionally agree on a large number of other issues and among these there are a number of positive developments.
From our perspective the most positive development is the fact that based on an amendment proposed by the European Parliament, the negotiators have provisionally agreed to include a Public Domain clause in Article 5 of the Directive. This clause intended to ensure that reproductions of works in the public domain can no longer be protected by copyright or neighbouring rights (as it is currently the case in a number of EU member states such as Germany and Spain). This is not only welcome because it would solve a real problem or because it would turn one of the recommendations of our Public Domain Manifesto into law, but also because it will be the first ever mention of Public Domain in EU copyright framework!
Good news for cultural heritage institutions
Another important improvement can be found in the provisions of the directive aimed at improving access to Out Of Commerce Works (OOCW) in Articles 7-9. Here the negotiators have provisionally agreed on changes that will make these provisions much stronger and much easier to use for cultural heritage institutions. As in the original Commission proposal the mechanism for allowing cultural heritage institutions to make available Out Of Commerce Works from their collections will be Extended Collective Licensing (ECL). However, in the provisionally agreed text the negotiators have followed the European Parliament’s proposals to add a fallback exception that allows cultural heritage institutions to make OOCWs available online in situations where they cannot obtain such licenses because no representative collective management organisation exists. This combination of ECL with a fallback exception would finally provide a comprehensive solution for the copyright problems faced by cultural heritage institutions that are digitising their collections.
Finally the negotiators have dropped a highly problematic proposal by the European Parliament which would have outlawed the combination of exceptions. As recently highlighted by our friends at LIBER this measure would have been highly detrimental for many types of research. It would have also undermined a long standing principle of the EU copyright framework that allows the combination of exceptions as long as the resulting uses comply with the three step test. We are happy to see that this needless and toxic addition will not find its way into a final text of the directive.
On balance still a potential disaster
At this moment all of these improvements have been “provisionally agreed” upon, which reflects the principle that “nothing is agreed until everything is agreed”. When the negotiators meet again in January they still have to find agreement on Articles 13 and 11 and a number of other parts of the directive. The language that is in the table for these articles continues to be highly problematic (see our most recent analysis for Article 13 here and for Article 11 here) and unless there will be mayor improvements on these articles as well, the overall directive is still very likely to do much more harm than good.