Austrian Presidency of the Council compromise proposal available

9 November 2018

The Austrian Presidency of the Council has completed their compromise proposal in respect of articles 11 and 13 of the Copyright Directive (available here via Politico Europe). Of article 11, the Council proposes the following amendments:

  • That the provisions should apply only to press publishers based in an EU Member State, for the duration of 1 year, and;
  • That the provisions should not apply to “uses of insubstantial parts” (to be determined at the discretion of the relevant Member State) or “acts of hyperlinking when they do not constitute a communication to the public”.

Of article 13, the Council maintains the position that internet platforms should be prima facie liable for any copyright infringements committed by its users. However, the Council proposes two options through which platforms may avoid this liability:

  • Under the first option, platforms must cooperate with rightsholders in order to ensure no unauthorised acts of communication/making available to the public. Furthermore, the platform must take “effective and proportionate steps” to ensure these acts do not take place in the first instance (with credence given to the nature and size of the service, the types of work, the financial burden etc.). Finally, platforms must “act expeditiously” to remove any identified infringing uploads, and make “best efforts” to prevent their availability in future.
  • The second option follows broadly the same structure as the first, but with the addition of wording to the effect that legitimate uses (as permitted by exceptions and limitations of copyright law) will not be impacted by these provisions. This option also provides for information sharing between platforms and rightsholders, and dialogues between these two groups to determine best practices.

Importantly, both options still make reference to the implementation of “suitable and effective technologies” (potentially upload filters).