On 15 April 2019, the EU Council adopted the Copyright Directive, although The Netherlands, Luxembourg, Poland, Italy and Finland voted against the Directive as a 'step back for the Digital Single Market rather than a step forward'. Once it is published in the Official Journal of the EU, Member States will have two years to implement the provisions of the Directive into their national laws. If the UK leaves the EU before the date of implementation, the position in the UK will depend upon its desire to align with EU laws.
Despite intensive lobbying and protests across Europe in the run up to the vote, the text of the Copyright Directive has now been approved. The Directive seeks to harmonise aspects of copyright law relating to the Digital Single Market. The next stage is formal endorsement by the EU Council (likely to take place in April), but this is expected to be a formality. Member States will then have two years from publication of the Directive in the EU Official Journal to implement it into their national laws. Of course, the position in relation to the UK will depend on the status of Brexit.
We have discussed the two provisions that have garnered the most controversy (Articles 11 and 13, now Articles 15 and 17) previously in our February and January editions. However, it is worth noting that the Directive contains a number of other significant provisions. Below we summarise briefly each of the key provisions which, as the Commission puts it in its Press Release, are intended to ensure the "right balance between the interests of all players – users, creators, authors, press – while putting in place proportionate obligations on online platforms".
Rights in publications (Article 15, previously Article 11)
A new related right will be created for publishers of press publications (i.e., journalistic publications) established in a Member State relating to the online use of their publications by information society providers. The right, which will last for two years from the date the press publication was published (calculated from 1 January in the following year), will not however apply to:
- Private or non-commercial uses by individual users
- Acts of hyperlinking
- Use of individual words or very short extracts
Authors (i.e., journalists) should receive an 'appropriate share' of any revenues the press publisher receives under this provision.
News aggregators, such as Google News have, of course, heavily criticised this proposal and so it remains to be seen to what extent a market for publishers to charge for use of their content will be created. In its press release, the European Parliament suggests:
"As sharing snippets of news articles is specifically excluded from the scope of the directive, it can continue exactly as before. However, the directive also contains provisions to avoid news aggregators abusing this. The 'snippet' can therefore continue to appear in a Google News newsfeeds, for example, or when an article is shared on Facebook, provided it is "very short"".
It is likely interpretation of the exception for 'individual words or very short extracts' will be the subject of considerable debate.
Use of copyright-protected content by online content-sharing service providers (OCSSPs) (Article 17, previously Article 13)
OCSSPs are sites that store, and give the public access to, large amounts of copyright-protected works uploaded by their users, such as YouTube, Twitter and Facebook. However, the definition specifically excludes, for example, not-for-profit online encyclopedias (such as Wikipedia), open-source software-developing and sharing platforms (such as GitHub), online marketplaces, and B2B cloud services or cloud services that allow users to upload content for their own use.
An OCSSP will be liable for copyright infringement if users upload copyright protected material, unless it has a licence from the copyright holder (which will cover the acts of its non-commercial users) or, where no authorisation is obtained, it complies with the regime set out in the Directive. This requires OCSSPs, subject to an assessment of proportionality and other factors, to:
- Make best efforts to obtain an authorisation
- Make best efforts to ensure the unavailability of specific works notified by rightholders
- Act expeditiously, when receiving a notice from a rightholder, to disable or remove access to copyright works (notice and takedown), and also make best efforts to prevent their future upload (notice and staydown)
Start-up OCSSPs will not be subject to the full liability regime. Instead, where an OCSSP service has been available in the EU for less than three years, with an annual turnover of less than EUR 10 million, it will only be required to make best efforts to obtain an authorisation and to adopt notice and take down mechanisms. Once its average monthly visitors exceeds five million, it will also need to adopt notice and stay down mechanisms.
Much of the controversy surrounding this provision has focussed on freedom of expression arguments, and the extent to which, in practice, sites will implement automatic filtering mechanisms which will prevent legitimate material being uploaded. Such material may not, for example, be protected by copyright, there may be no infringement, or there may be a valid defence.
The Directive states that the mechanisms it sets out should not lead to non-infringing works not being made available. Member States must ensure that there are exceptions for quotation, criticism and review, and parody use (under current EU copyright laws, it is optional for Member States to implement such exceptions). Further, there must be a mechanism for users to complain and obtain redress where they dispute material being disabled or blocked.
The Parliament therefore suggests that "uploading protected works for quotation, criticism, review, caricature, parody or pastiche has been protected even more than it was before, ensuring that memes and Gifs will continue to be available and shareable on online platforms".
Remuneration of authors and performers (Article 18-23)
Where authors and performers license or transfer their rights in their copyright work, the Directive provides that they should receive appropriate and proportionate remuneration (Member States will determine the mechanism for this). Further, they should be given, at least annually, information on the exploitation of their works/performances, to ensure greater transparency in terms of the revenues earned. Where the revenues they receive under a contract turn out to be disproportionately low compared to the revenues derived from the exploitation of the relevant work, a contract adjustment mechanism should allow them to claim additional, appropriate and fair remuneration.
New exceptions to copyright infringement and measures intended to ensure wider access to content (Articles 3-14)
The Directive contains a number of provisions which are designed to improve research and preservation of cultural heritage. This includes new mandatory exceptions relating to text and data mining, the digital use of works for teaching or illustration, and allowing cultural heritage institutions to make copies of works in their permanent collection for preservation. There are also provisions relating to the use of out-of-commerce works, audio-visual works on video-on-demand platforms, and works of visual art in the public domain.