COUNCIL OF THE EUROPEAN UNION

Brussels, 22 February 2012

6822/12 Interinstitutional File: 2011/0136 (COD) LIMITE PI 23 AUDIO 21 CULT 29 CODEC 466 NOTE from: to: No. Cion prop.: Subject:

General Secretariat Working Party on Intellectual Property (Copyright) 10832/11 PI 61 AUDIO 18 CULT 37 CODEC 926 Proposal for a Directive of the European Parliament and of the Council on certain permitted uses of orphan works - Drafting suggestions by the Belgian delegation

Delegations will find attached, for information, drafting suggestions prepared by the Belgian delegation.

___________________________

6822/12 DG C I

SS/lo

LIMITE EN

ANNEX

PROPOSED AMENDMENTS BY THE BELGIAN DELEGATION REGARDING ARTICLE 6

I.

PROPOSED AMENDMENT BY THE BELGIAN DELEGATION REGARDING ARTICLE 6(2)

2. The organisations referred to in Article 1(1) may only use an orphan work in accordance with paragraph 1 in order to achieve aims related to their public interest missions, notably preservation, restoration and the provision of cultural and educational access to works and phonograms contained in their collections, provided that the use does not conflict with the normal exploitation of the work or other subject matter and does not unreasonably prejudice the legitimate interests of the rightholders.

New recital (nr to be determined): The exception or limitation to the reproduction and the making available rights for the permitted uses under the current Directive by publicly accessible libraries, educational establishments, or museums, as well as by archives, film or audio heritage institutions and public service broadcasting organizations, of orphan works contained in their collections, shall only be applied if these uses do not conflict with a normal exploitation of the work or other subject-matter and do not unreasonably prejudice the legitimate interests of the rightholder.

Motivation The Belgian delegation proposes to delete the reference in Article 6(2) to the last two prongs of the three-step test in the description of what constitutes permitted uses of an orphan work. A new recital could confirm the application of the three-step test to the exception.

6822/12 ANNEX

SS/lo DG C I

LIMITE EN

II.

PROPOSED AMENDMENT BY THE BELGIAN DELEGATION REGARDING ARTICLE 6(5)

5. Member States shall provide that a fair remuneration is due to rightholders that put an end to the orphan status of their works and other protected subject matter for the use that has been made by the organisations referred to in Article 1(1) of such works and other protected subject matter in accordance with paragraph 1. Member States shall be free to determine this remuneration taking account of their cultural promotion objectives. Member States may exempt certain categories of establishments from the payment of the remuneration. Motivation Establishments, institutions and other beneficiaries referred to under Article 1(1) should be able to continue to pursue their public interest mission in the information society by engaging in digitization and dissemination projects related to the cultural heritage they hold in their collections. The introduction of the principle of the payment of a remuneration for each use of an orphan work may hamper this mission significantly. This is the reason why Belgium was opposed to the obligation of payment of any form of remuneration for the permitted uses of orphan works as provided for in Article 6(5). Moreover, the notion of fair remuneration as provided for in the revised Danish Presidency compromise proposal creates significant uncertainty and does not entail sufficient leeway for Member States to determine a remuneration in function of their cultural promotion objectives. Similarly, the Belgian delegation is of the view that the notion of fair compensation would not be appropriate in this context, since this is a notion which is intrinsically linked to specific exceptions to the reproduction right (e.g. private copying and reprography, taking into account the prejudice to the right holder and the degree of use of technological protection measures). Following recent jurisprudence of the Court of Justice of the European Union in Case C-271/10, both concepts of remuneration and compensation are designed to establish recompense for authors (see 27- 29). Therefore, the notions of fair compensation and equitable/fair remuneration could be interpreted in the same manner. Public interest institutions have never been submitted to such onerous obligations as a counterpart to the exception they are benefiting from. The introduction of such notions would create a precedent in the acquis communautaire related to copyright.

6822/12 ANNEX

SS/lo DG C I

LIMITE EN

The Belgian delegation now proposes a notion which is very similar to the notion of remuneration which can be found in Article 6 of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version). Indeed, such a notion would provide Member States with more flexibility to modulate the remuneration according to their cultural promotion objectives.

______________________

6822/12 ANNEX

SS/lo DG C I

LIMITE EN