DRAFT
European Group Minutes
Brussels, May 30th, 2016
Attendees:
Ismayil Mammadkarimov, AAS
Owen Atkinson, ALCS
Richard Combes, ALCS
Barbara Hayes, ALCS
Wolfgang Mattiasch, BILDRECHT
Magdalena Vinent, CEDRO
Javier Díaz de Olarte, CEDRO
Sandra Chastanet, CFC
Philippe Masseron, CFC
Madeleine Pow, CLA
Mat Pfleger, CLA
Martin Kyst, CopyDan
Susanne Munk Knudsen, CopyDan
Anders Kristian Rasch, CopyDan (Vice-Chair)
Mats Lindberg, Bildupphovsratt
Christer Johansson, Bonus Copyright Access
Malin Hertzell, Bonus Copyright Access
Mathias Willdal, Bonus Copyright Access
Aleksandra Burba, Copyright Polska
Barbara Jozwiack, Copyright Polska
Jedrzej Maciejewski, Copyright Polska
Christian Zimmerman, DACS
Lutz Franke, DJU
Carola Streul, EVA
Myriam Diocaretz, EWC
Anne Bergman-Tahon, FEP
Andrea Buticchi, FEP
Małgorzata Szczodrowska, FEP
Giga Kobaladze, GCA
Georgina Bentliff, ICLA
Conor Kostick, ICLA
Samantha Holman, ICLA (Vice-Chair)
Yngve Slettholm, KOPINOR
Hege Døssland, KOPINOR
Jukka-Pekka Timonen, Kopiosto
Kirsi Salmela, Kopiosto
Anna Bleszynska-Drewicz, KOPIPOL
Juris Balodis-Boluzs, LATREPRO
Tereze Tretjakova, LATREPRO
Sandra Csillag, Literar-Mechana
Michael Kavouras, Literar-Mechana
Hanneke Vercshuur, LIRA
Zuzana Semanova, LITA
Timea Viragova, LITA
Jennifer Crewe, NLA
George Andrew Zannos, OSDEL
Sarah Faulder, PLS
Vincent van den Eijnde, Pictoright
Philip Kubler, ProLitteris
Benoit Proot, Reprobel (Chair)
Kurt Van Damme, Reprobel
Rudi Zaman, SAZOR
Marc Hofkens, SEMU
Florence-Marie Piriou, SOFIA
Christian Roblin, SOFIA
Martèl Bakker Schut, Stichting Reprorecht
Hans Van den Hout, Stichting Reprorecht
Marije van der Jagt, Stichting Reprorecht
Hein Van Leeuwen, Stichting Reprorecht
Carlo Scollo-Lavizzari, STM/IPA
Eefke Smit, STM/IPRO
Anke Shierholz, VG Bild-Kunst
Christian Beyer, VG WORT
Rainer Just, VG WORT
Sabine Richly, VG WORT
Muhammet Ciftci, TBYM/BASYAYBIR
Ihsan Sonmez, TBYM/BASYAYBIR
Zeynep Atiker, YAYBIR
Observers:
Dorien Kelly, ACA
Michael Sullivan, ACA
Tracey Armstrong, CCC
Antje Sörensen, CCC
Victoriano Colodrón, CCC
Michael Healy, CCC
Jim Alexander, Copyright Agency/Viscopy
Tim Denny, Viscopy
Caroline Morgan, Copyright Agency/Viscopy
Lazarus Serobe, DALRO
Maïa Bensimon, SGDL
IFRRO Secretariat:
Olav Stokkmo
Manuela Francesia
Pierre-Olivier Lesburguères (Taking minutes)
Veraliah Bueno
1
DRAFT
1. Approval of agenda
Benoît Proot (Chair) opened the European Group meeting and welcomed the participants. The
agenda was approved.
2. Minutes of last meeting in Mexico City
The minutes of the European Group meeting on 12 November 2015 in Mexico City were approved.
3. Implementation of the CRM Directive; short overview of latest evolutions
Olav Stokkmo presented the matrix on the implementation of the EU CRM Directive in the 28 EU
Member States, which had been circulated and made available to IFRRO members on the Members
Only section of the IFRRO website; so far, five countries have implemented the CRM Directive. He
invited members to continue updating the matrix via the Secretariat, and announced that a conference
call would be organised in autumn for further exchange of information on the issue.
4.
Implementation of the Orphan Works Directive and the MoU on Out of Commerce
Works; short overview of latest evolutions
Olav Stokkmo referred to the matrix mentioned under item 3, which also documents the
implementation of the EU Orphan Works Directive and the Out-of-Commerce Works MoU. Poland
has implemented the MoU in its legislation, and the Czech Republic bill to implement the EU CRM
Directive also proposes the implementation of the Out-of-Commerce Works MoU.
In France, the Court case against ReLIRE has resulted in certain issues having been referred to the
Court of Justice of the European Union (CJEU); the Attorney General’s opinion is scheduled for 7
July 2016, whilst the publication of the decision is expected for October 2016. It is unfortunate that
the European Commission (EC) has not expressed a clear support for the out-of-commerce MoU in
relation to the case; IFRRO, EWC, FEP and STM consider a joint letter to the EC President, JeanClaude Juncker, which also the library organisations signatories to the MoU would be invited to
sign, asking for the Commission to reiterate its express support to the MoU.
Carlo Scollo-Lavizzari (STM) recalled that, in conjunction with the MoU discussions, at least on two
occasions, the EC asked the Legal Service for its opinion, which they also offered.
5. National copyright legislation amendment initiatives and other national initiatives
5.1 Belgium
Benoît Proot informed of initiatives in Belgium following the CJEU ruling in the HP Belgium v
Reprobel case. Reprobel has met regularly with federal Government representatives, including with
the Minister in charge. A legislative proposal addressing reprography and the right of publishers to
continue to receive remuneration for reprographic reproduction administered by Reprobel on the
basis of an exception in the Belgian copyright law, is under preparation. It is expected that the
equipment levy on reproduction devices will be limited to strictly private copying, and that
reprographic reproduction for professional/internal uses will be on the basis of an operator fee.
Further, a ‘catch all’ exception for illustration for teaching in education (including reproductions on
paper) is on the table. Reprobel’s revenue collection is likely to decrease, and the equal share of
authors and publishers is under pressure. It also seems that proposed changes to the reprography
legislation will be limited to copying on paper, thus excluding print-outs. Publishers would, as stated,
continue to benefit from the reprography scheme but no longer from private copying and the (broad)
educational exception. The government’s amendment bill is scheduled to be submitted to the
2
DRAFT
Parliament in autumn this year. The Brussels Court of Appeal is expected to rule on the HP Belgium
– Reprobel case towards the end of this year, following pleadings scheduled in October.
On a question from Florence-Marie Piriou (SOFIA), Kurt Van Damme (Reprobel) explained that the
legal basis for the remuneration to publishers would be a sui generis right on the basis of national
law, rather on the basis of the EUCD. A new chapter in the legislation would separate author’s rights
from the publisher’s right, and a provision would be added clarifying that “the publisher’s share of
the remuneration will not affect the fair compensation to be paid to authors under the EUCD article
5.2a”.
On a question from Olav Stokkmo, all RROs present reconfirmed that print-outs are included in their
reprography schemes. Carlo Scollo-Lavizzari (STM) added that, in the CJEU ruling in the VG Wort v
Kyocera and others (2013) case, the Court did not rule on whether print-outs can be covered,
therefore it remains an open question.
5.2 Germany
Rainer Just (VG Wort) updated on the German Federal Court decision in the Vogel case. Only
authors and creators are considered as rightholders, and publishers may, at the outset, not receive a
share of the fair compensation paid for reprographic reproduction under the relevant exceptions in
the German Copyright Act. VG Wort may only pay a share of the remuneration to publishers if the
author has transferred rights to the publisher. This may apply to authors who have not transferred
their reprographic reproduction rights to VG Wort; authors with a representation contract with VG
Wort may not be in a position to transfer rights to the publishers as they have already been
transferred to VG Wort. As the situation currently stands, substantial amounts may have to be
reclaimed from publishers. VG Wort is lobbying in parallel for a national German and a European
solution.
Answering a question from Benoît Proot, Rainer Just confirmed that collection of revenues under the
current legislation is continuing, and the equipment industry and other debtors continue paying. Anke
Schierholz (VG Bild-Kunst) commented that visual artists have transferred their reprographic
reproduction rights to VG Bild-Kunst, which would therefore not be in a position to pay
remuneration to publishers on the basis of a transfer of rights to them. Sarah Faulder (PLS) noted
that the German Federal Court decision causes concern also in countries without levy schemes, as it
affects the core of collective management.
5.3 Ireland
Samantha Holman (ICLA) informed of a ministerial briefing document, which includes proposed
amendments to the Irish copyright legislation to introduce fair use and the broadening of exceptions
and limitations. She also advised that the CRM Directive has been implemented in Ireland.
5.4 Norway
Yngve Slettholm (Kopinor) reported on the draft revision of the Norwegian Copyright Act, which is
not expected to have a major impact on Kopinor’s work.
5.5 Greece
George Zannos (OSDEL) informed that draft legislation to implement the EU CRM Directive was
shortly to be presented to the Greek Parliament; it is not expected to include extension of devices to
be levied to include, for instance, PCs.
6. CJEU decision in the HP Belgium - Reprobel case; possible consequences on RROs
3
DRAFT
Olav Stokkmo noted that the CJEU ruling in the HP Belgium case is arguably the most important
challenge to collective rights management in the text and image sector since the establishment of
RROs. Regular conference calls have been and will continue to be organised by the IFRRO
Secretariat for the purpose of monitoring the situation and exchange of information; any IFRRO
member with interest in the issue can participate in these calls. A smaller task force to assist in
relation to the situation in Belgium had also been set up to examine short and medium term
consequences, including possible remedies. Sarah Faulder suggested that the IFRO Board considers
establishing a task force to examine potential mid and long term consequences of the CJEU decision
on RRO activities across various models of operation.
The meeting agreed that it is important to push for solutions both at EU and national level. IFRRO
also encourages authors and publishers associations nationally to continue dialogues on how to
address challenges, which arise to the current rights administration by RROs. Rainer Just supported
the proposal, although authors and publishers associations are autonomous and it may therefore be
challenging for RROs to facilitate joint meetings, whilst Conor Kostick (ICLA) emphasised that it
would be short sighted to think that authors will benefit from this ruling; only big companies will,
and this argument should be won with the authors.
7. European Development Committee Update
Samantha Holman referred to the recent meeting of the IFRRO European Development Committee
(EDC) in Sofia, Bulgaria, in May 2016, which was followed by a successful sub-regional seminar.
The Director of the Bulgarian Copyright Directorate had promised to set up a working party and to
support amendments to the Bulgarian law that would make administration of reprography easier in
the country. The next EDC meeting is scheduled to take place in Serbia, during the Belgrade book
fair at the end of October, to support the local RRO OORP, which has been admitted as an IFRRO
member, and enhance contact with authors and publishers in the region. The RRO in Estonia will be
invited as an observer to the meeting. Olav Stokkmo noted that LATREPRO had successfully signed
its first licencing agreement.
8. Keynote speech on the Review of EU copyright rules by Maria Martin-Prat, Head of the
Copyright Unit at the European Commission
María Martin-Prat, Head of the EC Copyright Unit, noted that, by the deadline 10 April 2016, five
Member States only had implemented the CRM Directive, and that the European Commission was
preparing proceedings against those, which had not implemented it. She then reminded of the four
key aspects of the EC Communication of 9th December 2015 on copyright: territoriality; exceptions
and limitations; a publisher’s right, and the CJEU ruling in HP Belgium; and facilitating the making
available of out-of-commerce works through some form of extension of voluntary collective
licensing agreements.
The Commission holds that exceptions and limitations may require enhanced harmonisation. The EU
Copyright Directive (EUCD) makes 20 of them optional, and this has led to differences in their
implementation in national legislation. The Copyright Unit is, nonetheless, mindful of the principle
of subsidiarity and that collective rights administration, for instance in the text and image sector, is
through different models of operation in the various Member States. Harmonisation may be required
mainly when there is a cross-border effect of the licensed use of works. María Martin-Prat did not
envisage a new educational exception; it seemed, however, necessary to clarify the current scope and
concept of Article 5.3.a of the EUCD on ‘Illustration for teaching’. She realised that it would
represent a challenge to offer a positive definition; rather the Commission would aim at clarifying
what is not covered under that exception, and also ensure the possibility of the use of works in
education and research through secure networks, including across borders, leaving the practical
implementation to the Member States.
4
DRAFT
The Commission is considering an exception to allow individuals who can legally access the content
to perform Text and Data Mining (TDM), provided defined standards of security and fairness
towards rightholders are met.
María Martin-Prat, whilst acknowledging the challenges created by the CJEU ruling in the HP
Belgium – Reprobel case, pointed out the time required if the issue were to be resolved on the EU
level alone. There seems to be gaps left by the CJEU decision, which could create a scope for
solutions also at national level. On a question from Benoît Proot, she added that, as the Commission
is prevented from making statements on CJEU rulings, it was difficult to see how the Commission
could issue an official position on the matter. A possible long-term solution could be to establish a
specialised EU IP court, as submitted also by IFRRO. On the specific publishers neighbouring right
issue, María Martin-Prat referred to the ongoing EC consultation.
Sarah Faulder noted the difficulty in resolving the problems caused by the CJEU decision in the HP
Belgium – Reprobel case at national level as the root of the problem lies in the wording of the
EUCD; she also pointed out the inconsistency in the EU legal framework with the CRM Directive
recognising publishers as rightholders. Carlo Scollo-Lavizzari advised that a solution should be
sought at EU and national level so that both can move together. Maria Martin-Prat commented that
she was not convinced that the problem related to the EUCD, and although the CRM Directive does
recognise publishers as members of a CMO, she disagreed that it recognises them as rightholders, the
same way as authors and producers. One possible solution to the problem might be through the
transfer of rights, or the creation of a publisher’s neighbouring right.
On a question from Anne Bergman (FEP) regarding education and library exceptions, and an enquiry
from Anke Schierholz on hyperlinking, Maria Martin-Prat emphasised that the ‘Illustration for
teaching’ exception refers to illustration only, and not for instance multiple copying. The library
exceptions regard three main issues: for preservation purposes, which is a clearly defined concept;
the production, making available and cross-border transfer of accessible format copies for persons
with print disabilities on the basis of the Marrakech Treaty; and e-lending. Maria Martin-Prat did not
expect that the communication to the public concept will be redefined anytime soon. Addressing
hyperlinking requires initiatives claiming that it is not acceptable to hyperlink to anything available.
At the invitation of Christian Roblin (SOFIA), Maria Martin-Prat emphasised that she did not find it
appropriate to comment on the Soulier and Doke case, which was pending in the CJEU. Olav
Stokkmo commented that the problem with the out-of-commerce MoU is that the Commission
initiated and facilitated it, and now fails to actively support it in conjunction with ongoing CJEU
cases. He then suggested, given the seriousness of the problem created by the CJEU ruling in HP
Belgium, to consider an IFRRO - European Commission ad hoc working party to examine possible
solutions to preserve collective management in the text and image sector, to which Maria MartinPrat confirmed that the Copyright Unit would remain open, although, as there is no harmonisation at
EU level on the right of publishers, the main issue seems to be the space left in the CJEU ruling for
national laws to allow the current systems to continue.
On a question from Rainer Just, Maria Martin-Prat noted that the situation in Germany is distinct
from that of the other Member States. There are also differences in views among the Member States
on how to address the issue of a right for publishers to receive remuneration for reprography
alongside that of the author.
9. Review of the EU copyright rules
Three key issues to the IFRRO constituencies are exceptions in favour of education, libraries, and
Text & Data Mining (TDM). Various matrices on rights administration in relation to those issues,
based on information provided by the membership, are readily available on the Members Only
5
DRAFT
section of the IFRRO website; they have also been shared with the EC Copyright Unit. In the further
work, until the Commission’s proposal on the review of the EU Copyright rules is published,
scheduled for 21 September, the Secretariat will continue to have a main focus on the European
Commission. In parallel, it will start sensitising selected Members of the European Parliament (MEP)
and government representatives / Copyright offices on IFRRO’s position on the issues of most
relevance to the IFRRO membership. IFRRO members were encouraged to engage with their
national governments and Council IP Working Party representatives, and selected MEPs.
Carlo Scollo-Lavizzari advised that STM argues that TDM should be enabled through contracts and
not through an exception. On an enquiry whether the proposed EC initiative on geo-blocking was an
issue of concern for the IFRRO community, Olav Stokkmo responded that it is still to be studied at
the Secretariat. Anne Bergman reminded that book-publishing is excluded from the proposed
Regulations on geo-blocking until 2022. She welcomed Maria Martin-Prat’s stance on illustration for
teaching, encouraging IFRRO to work on a further specification of the concept, and warned that
library exceptions may prove to cause more of a challenge. In this respect she advised that awareness
raising activities in relation to the European Parliament be focused more on the Socialists and
Democrats political group.
10. EC Consultation on publishers’ neighbouring rights and on freedom of Panorama
At the suggestion of Olav Stokkmo, the meeting agreed that, on the freedom of panorama exception,
IFRRO should take advice and follow the position of EVA.
Olav Stokkmo further noted that, regarding the publishers neighbouring right issue, there is not a
consensus among IFRRO’s members either to support or reject such a right, at this stage. There is,
however, full agreement that the current system of administration of reprographic rights by RROs
must be allowed to continue, and that this includes the right of both authors and publishers to be
remunerated under reprography schemes administered by RROs. The meeting noted EMMA’s and
ENPA’s proposed changes to the draft IFRRO submission on the EC Consultation, and other
comments made at the meeting, which would be considered in a revised draft submission to be
circulated to the European Group members for comments.
Florence-Marie Piriou suggested that, at some point, it might be necessary to consider, in the light of
TRIPS, the impact on bilateral agreements of publishers not being recognised as rightholders.
11. Other EU issues
Anne Bergman mentioned the current proceedings in case C-174/15 (Vereniging Openbare
Bibliotheken v Stichting Leenrecht) relevant to e-lending, which has been referred to the CJEU, with
the Opinion of the Advocate General to be published on the 16 th of June. Furthermore, referring to
the recently adopted EC Regulation on accessibility, which includes obligations on publishers, she
encouraged IFRRO members to lobby their governments for the transformation and making available
of published works for print disabled persons under an exception in the legislation to be made subject
to works not being commercially available.
12. Elections of the European Group’s Executive Committee at the meeting in Amsterdam
At the proposal of Benoit Proot, Anna Bleszynska-Drewicz (KOPIPOL), Sandra Chastanet (CFC)
and Hege Døssland (Kopinor) were elected as the European Group Nominating Committee to
prepare for the election of the EG Executive Committee at the next EG meeting.
13. AOB
6
DRAFT
Olav Stokkmo presented changes to the IFRRO Statutes and Guidelines, which the Board proposes to
be voted at the AGM 2016 in Amsterdam: (i) proxies to be used for any type of voting, not only
elections; (ii) extension of the election period for Board members and the Presidency from the
current two to three years; (iii) enabling the President to be re-elected twice, which would then also
make the current President eligible to serve another period; (iv) modification of the membership fee
tiers and corresponding votes; (v) inclusion of the collection for PLR in the basis for the calculation
of membership fees to IFRRO. The latter is a result of a request from PLR International for enhanced
IFRRO involvement in the PLR work. Anne Bergman (FEP) advised against IFRRO supporting the
extension of PLR schemes to e-lending, which should not be covered by an exception in EU or
national copyright legislation.
14. Date and place of next meeting: Thursday 3rd of November, Novotel Hotel, Amsterdam
Benoît Proot announced the date and time for the next European Group meeting and, there being no
other business, he closed the meeting.
Ref. Pierre-Olivier Lesburguères, 21 June 2016
-END-
7