Proposals to Directive on copyright in DSM – The matters of rights in content

Video-on-demand services have the potential to play a decisive role in the dissemination of audiovisual works across the European Union. However, the availability of those works, in particular European works, on video-on-demand services remains limited. Agreements on the online exploitation of such works may be difficult to conclude due to issues related to the licensing of rights.

Such issues may, for instance, appear when the holder of the rights for a given territory is not interested in the online exploitation of the work and does not license or holds back the online rights, which can lead to the unavailability of audiovisual works on video-on-demand services. Other issues may be linked to the windows of exploitation.

To facilitate the licensing of rights in audiovisual works to video-on-demand services, this Directive requires Member States to provide for a negotiation mechanism allowing parties willing to conclude an agreement to rely on the assistance of an impartial body. For that purpose, Member States may either create a new body or rely on an existing one that fulfills the conditions established by this Directive. The body should meet with the parties and help with the negotiations by providing professional and external advice.

The use of and the participation in the negotiation mechanism should remain voluntary. Against that background, Member States should be free to decide on the concrete 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 mechanism.

Publishers, including those of press publications, books or scientific publications, often operate on the basis of the transfer of authors’ rights by means of contractual agreements or statutory provisions. In this context, publishers make an investment with a view to the exploitation of the works contained in their publications and may in some instances be deprived of revenues where such works are used under exceptions or limitations, such as the ones for private copying and reprography, or under public lending schemes.

In a number of Member States the compensation or remuneration for such uses is shared between authors and publishers. In order to take account of this situation and improve legal certainty for all concerned parties, Member States should be allowed to determine that, when an author has transferred or licensed his rights to a publisher or otherwise contributes with his works to a publication and there are systems in place to compensate for the harm caused by an exception or limitation, publishers are entitled to claim a share of such compensation.

The same possibility should exist for remuneration for public lending. The burden on the publisher to substantiate his claim for the compensation or remuneration should not exceed what is required under the system in place. Member States should remain free to lay down the conditions as to the sharing of this compensation or remuneration between authors and publishers in accordance with their national systems.

Authors and performers need information to assess the economic value of their rights which are harmonised under Union law. This is especially the case where such rightholders grant a licence or a transfer of rights for the purposes of exploitation in return for remuneration. This need does not arise to the same extent when the work or performance is merely used by the contractual partner for activities the main purpose of which is not the exploitation of the work or performance itself, such as for administrative purposes or in the context of the use of logos or house styles and also in cases where the author has granted an indefinite license to the public without remuneration.