Draft proposal for a directive on copyright in DSM – the licencing mechanisms

For reasons of international comity, the licencing mechanisms for the digitisation and dissemination of out-of-commerce works provided for in this Directive should not apply to works or other subject-matter that are first published or, in the absence of publication, first broadcast in a third country or, in the case of cinematographic or audiovisual works, to works the producer of which has his headquarters or habitual residence in a third country.

These mechanisms should also not apply to works or other subject-matter of third country nationals except when they are first published or, in the absence of publication, first broadcast in the territory of a Member State or, in the case of cinematographic or audiovisual works, to works the producer of which has his headquarters or habitual residence in a Member State.

As mass digitisation projects can entail significant investments by cultural heritage institutions, any licences granted under the mechanisms provided for in this Directive should not prevent them from generating reasonable revenues in order to cover the costs of the licence and the costs of digitizing and disseminating the works and other subject-matter covered by the licence.

Information regarding the future and ongoing use of out-of-commerce works and other subject-matter by cultural heritage institutions on the basis of the licencing mechanisms provided for in this Directive and the arrangements in place for all right holders to exclude the application of licences to their works or other subject-matter should be adequately publicised.

This is particularly important when uses take place across borders in the internal market. It is therefore appropriate to make provision for the creation of a single publicly accessible online portal for the Union to make such information available to the public for a reasonable period of time before the cross-border use takes place.

On-demand services are increasingly important in terms of access of citizens to audiovisual works. These services have the potential to play a decisive role in the dissemination of European works across the European Union. However, agreements on the online exploitation of such works may face difficulties related to the licencing of rights. Such issues may, for instances, appear when the holder of the rights for a given territory is not interested in the online exploitation of the work or where there are issues linked to the windows of exploitation.

To facilitate the licencing of rights in audiovisual works to video-on-demand platforms, this Directive requires Member States to set up a negotiations mechanism. This mechanism would allow parties willing to conclude agreement to rely on the assistance of an impartial body. The participation in the negotiation mechanism should be voluntary. The body should meet with the parties and help with the negotiations by providing professional and external advice.

Against this background, Member States should decide on the conditions of the 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 forum.