TechNotes - Top 10 issues from the Directive on Copyright in the Digital Single Market

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“But today some User Upload Content platforms refuse to compensate artists and all music creators fairly for their work, while they exploit it for their own profit… The proposed Copyright Directive and its Article 13 would address the value gap and help assure a sustainable future for the music ecosystem and its creators, fans and digital music services alike.” (Sir Paul MacCartney, July 2018)

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“The final text of the copyright directive for the digital single market will harm access to knowledge and unduly benefit large corporations and rightsholder industries.” (Wikimedia Foundation, 28 February 2019).

 

1. What’s its status? The Directive on Copyright in the Digital Single Market (“the Copyright Directive”) has been the subject of extensive lobbying (both for and against, as highlighted by the quotes above) for the past 2.5 years. The Copyright Directive completed the European legislative procedure on 15 April 2019 and was published in the Official Journal on 17 May 2019. Member States now have just over two years (until June 2021) to pass national legislation to implement the Copyright Directive in their countries. Certain controversial issues will need to be better defined in national implementing legislation as we explain below. Stakeholders have a limited window for further lobbying to shape some of the key provisions proposed in the Copyright Directive.

2. New obligations for OCSPs: Article 17 (formerly Article 13) introduces new obligations for online content-sharing service providers (“OCSPs”). Under Article 17, OCSPs will be held directly liable for their users posting infringing content on their platforms. In order to avoid liability, OCSPs will need to demonstrate that they have made “best efforts” to obtain permission from rightsholders and acted diligently to remove any infringing content once notified by rightsholders, as well as keep it disabled.

3. Upload filters: Article 17 does not explicitly require OCSPs to use upload/content filters as previous drafts of the Directive did. However, it is highly likely that OCSPs will need to use such filters to comply with their new obligations. This is controversial as upload filters may capture legitimate content – this is seen as a potential restriction of freedom of expression and the spread of art and knowledge. Germany concluded that under Article 17 it would still be necessary for OCSPs to use upload filters and recorded its objections, as part of the final vote, in a formal statement (in German only).

4. No meme ban: In order to address some of the concerns, Article 17 includes an exception for content which may be considered quotation, criticism, review, caricature, parody or pastiche. This exception should cover memes. It is unclear how any content filters or automated means implemented by OCSPs will correctly characterise and recognise this content on their platforms.

5. Commission to release more guidance: Article 17 requires the Commission to consult and organise dialogue between stakeholders in order to issue further guidance on the application of Article 17. This guidance may address the lack of clarity surrounding application of Article 17 in practice.

6. Press publishers’ right: Article 15 (previously Article 11) gives publishers of news or journalistic content, the right to prevent unauthorised reproduction and the making available to the public of their publications online. These rights expire 2 years from 01 January after the content’s publication date, rather than 20 years as originally proposed. In France, draft legislation has already been presented to its parliament to implement Article 15 and Belgium has appropriate legislation in place.

7. No link tax and snippets permitted: Article 15 excludes hyperlinks and very short extracts of press publications (referred to as “snippets”) from its scope, in response to news aggregators’ concerns about the impact the press publishers’ rights would otherwise have on their services.

8. Strengthened authors’ rights: The Copyright Directive provides greater protection for authors by requiring Member States to implement legislation that guarantee authors: “appropriate and proportionate remuneration” when they licence or transfer their works; receive comprehensive information when their works are exploited; and the right to claim additional remuneration if it later transpires that the remuneration originally agreed was disproportionately low compared to the exploitation revenue. The details of these measures are left to EU Member States (although some of the measures are already in place in the Netherlands).

9. Limited text and data mining exception: The Copyright Directive recognises the value that data mining may play in the digital economy and creates limited exceptions to IP right infringement for this activity for research organisations and commercial organisations who have lawful access to the data/works; and in the case of commercial organisations, where the rightsholder has not reserved its rights to object to data mining.

10. 6 countries objected in the Council of the European Union: Netherlands, Luxembourg, Poland, Italy and Finland objected to the Copyright Directive in the Council of the European Union vote and released a joint statement. Sweden also objected to the Copyright Directive but did not release any statement. Belgium, Estonia and Slovenia abstained. The Copyright Directive has been criticised for its lack of clarity and inability to strike the right balance between the rights of content creators and users. Whether the UK will implement the Directive in the current political/Brexit environment is currently also unclear.

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