Franco-German agreement reached on Copyright Directive, new trilogue dates confirmed

4 February 2019

An agreement has been reached between French and German governments in an effort to secure a negotiating mandate at the next COREPER meeting of 8 February 2019. Previously, at the Council meeting of 18 January 2019, the French and German positions, particularly in regards article 13, were too far apart to secure a mandate (the French position being to include SME’s within the provision, and the German position being to exclude them). Notable provisions of the new leaked agreement include:

  • Of article 3 (text and data mining): Whilst the Presidency are reportedly not supporting a change to the mandatory exception introduced here, they are “ask[ing] COREPER for the flexibility to accept such change”.
  • Of article 11 (press publishers’ right): Appears largely unchanged from the previous position, with a small modification included relating to employment contracts.
  • Of article 13 (“upload filters”): There is no exception for SME’s, and instead a general application of new liability rules. Smaller platforms may be excepted upon three conditions: (1) where their turnover is less than under 10 million euros, (2) their platform has under 5 million visitors per month, and (3) they have been active for less than three years. In addition to this, smaller platforms will still have to make “best efforts” to obtain licences (which may in effect result in offers becoming non-negotiable), and comply with notice-and-takedown (but not staydown) rules.

This deal appears to be agreed despite the fact that last week the German Minister of Justice Katarina Barley, received “the largest EU petition in history” (in excess of 4.5 million signatories) opposing the new Copyright Directive.

Following discussion at the COREPER meeting of 8 February (and pending agreement and grant of mandate), a further trilogue will be held on either 11 or 12 February.