SWD IA on EU copyright modernisation – options to address preservation of cultural heritage

Baseline

No policy intervention. Reproduction of works for preservation purposes by CHIs would continue to take place only as permitted under the different conditions and the varying space provided by the national implementation of the existing EU exception for ‘specific acts of reproduction’, or after the reproduction right has been cleared with rightholders if CHIs consider that the transaction costs involved is for them worth and possible to incur. In voluntary legal deposit contexts and for parts of scientific publications that libraries have access to remotely, preservation could continue to take place within broader agreement-based systems.

CHIs consider that the identified problems would not be solved in the absence of policy action. Rightholders, on the contrary, overall maintain that the current legal framework for preservation by CHIs is adequate and would be in favour of no intervention.

Option 1 – Guidance to MS and peer review mechanism on the implementation of the EU exception on ‘specific acts of reproduction’ for preservation purposes

The Commission would provide guidance on the maximum scope of the current exception on ‘specific acts of reproduction’ as applicable to preservation purposes (categories of works, including those born-digital, beneficiaries and uses), while ensuring compliance with the three-step test.

In addition, it would also initiate a ‘peer review’ among MS aimed to the comparison of national implementations of the EU exception and mutual learning as to the maximum space that it allows.

Option 2 – Mandatory harmonised exception for preservation purposes by cultural heritage institutions

This option would require MS to implement a mandatory exception to the reproduction right with the following elements:

  • Beneficiaries: CHIs engaged in preservation activities, i.e. publicly accessible libraries, museums, as well as archives and film or audio heritage institutions. Beneficiaries would be allowed to outsource activities covered by the exception, for example to technical service suppliers.
  • Subject-matter covered: all types of works and other protected subject matter in the permanent collection of the beneficiaries, intended as works on carriers (e.g. books, minidisc, tapes) that they own or are permanently deposited with them, or embodied in files that they already own or host on a permanent basis (for example as a result of a contractual agreement allowing for the downloading or transfer of archival copies for permanent hosting, or of legal deposit legislation).
  • Permitted uses: beneficiary institutions would be able to perform all acts of reproduction and make as many copies as necessary for preservation purposes, into any format and media, irrespective of the technique used and of the state of a given work (for example, even before degradation has started). The exception would only cover the reproduction right (and the database extraction right in the case of the protection of non-original datasets). It would as such not permit further distribution or uses of the content, for example its making available.
  • Relationship with the licensing market: as applicable to permanent collections as described above, the exception would per se have no bearing on the ability of rightholders to authorise or prohibit the acquisition of permanent copies by CHIs, and more generally on the licensing market, and their ability to take measures to preserve the stability and security of their systems through which access to electronic resources is provided.
  • Compensation: for the reasons explained in the previous point, MS may not subject the exception to fair compensation.
  • Interaction with the current exception: outside of the scope of this mandatory exception, the existing (optional) exception for ‘specific acts of reproduction’ under Article 5(2)c of the InfoSoc Directive would continue to apply, as relevant in uses other than preservation.
  • CHIs would favour this option as the one that best addresses the problems they raise with the current situation. Rightholders would, on the contrary, consider it unnecessary and/or excessive.