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Reform of EU copyright law creates additional rights for rightholders in the digital age

Reform of EU copyright law creates additional rights for rightholders in the digital age

  • United Kingdom
  • Technology, Media and Telecoms - General
  • Technology, Media and Telecoms - Media

05-07-2019

Précis

New EU copyright directive entered into force on 7 June 2019, ushering in new EU copyright rules, bringing radical changes to the EU copyright regime. Member states have until 7 June 2021 to implement the new directive.

Background

The European Commission first set out its ambitious intention to modernise certain aspects of EU copyright law in its Commission communication, “Digital Single Market Strategy for Europe”, published in May 2015. This was followed by a Communication on the modernisation of the EU copyright framework in December 2015. We previously wrote about these here .

On 17 May 2019, Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (the “Directive”) was published in the Official Journal. The Directive entered into force on 7 June 2019, and Member states will have two years (until 7 June 2021) to implement the Directive within their jurisdictions.

What and so what?

The Articles of the Directive which have proved the most controversial are Article 15 (previously Article 11 in earlier drafts of the Directive) and Article 17 (previously Article 13 in earlier drafts of the Directive).

Article 15 (Protection of press publications concerning online uses) creates a new right which aims to make online platforms which aggregate news, pay publishers of press publications for using their content. Although this has been labelled a “link tax” by critics, use of hyperlinks without further content is specifically excluded under the Directive (Article 15(1)).

Supporters of this new right, claim the reforms are necessary to create a system by which appropriate compensation is given to publishers.

A criticism of Article 15 is that it disturbs the flow of information on the internet. Critics have stated that the exemptions to Article 15 are not clear and create uncertainty. For example, they contend that the meanings of certain exemptions such as posting a “very short extract” and/or doing so for “private or non-commercial use” are unclear. For example, how long would an extract have to be to make an online platform liable under Article 15? A question such as this is likely to remain unanswered until case law fleshes out the Directive’s provisions.

Article 17 (Use of protected content by online content-sharing service providers) obliges online content-sharing service providers (“Providers”) to obtain authorisation from rightholders in order to communicate to the public or make available to the public works or other subject matter. Providers may be liable (providing recourse for a rightholder against the Provider), if unlicensed works are uploaded to the Provider’s platform unless the Provider can demonstrate that (see Article 17(4)):

• it made “best efforts” to get permission from the rightholder; and

• it made best efforts “in accordance with high industry standards of professional diligence” to ensure that unlicensed works were not made available; and in any event

• it “acted expeditiously” upon receiving notice from rightholders to remove any infringing material

Article 17 has been dubbed a “meme ban” by some critics, however the Directive contains an exemption intended to cover this, which allows for the use of copyright-protected material for the purposes of criticism, review, parody and pastiche (Article 17(7)).

Many entertainers and content creators support this new right as they claim it will hold online platforms accountable for unlicensed material appearing on those platforms.

Large online platforms have criticised the introduction of Article 17 stating that it risks harming the creative economy by discouraging online platforms from hosting user-generated content as it would become too risky or expensive and uncertain to implement.

The Directive assumes a level of technological infrastructure to properly police such matters. Some large online platforms have developed software which scans uploads against a database submitted by rightholders and blocks uploads where infringing material is found. Software such as this requires extensive investment by the Provider and input from rightholders.

Some commentators have considered whether implementation of the Directive creates an additional barrier to entry to market for start-ups, given the expenditure necessary for content filtering systems to filter out unlicensed copyright works in user uploads. Article 17(6) of the Directive partly seeks to address this as it provides a lesser hurdle for new Providers to overcome under the Directive’s liability regime in Article 17(4). Article 17(6) is available to new Providers whose services have been available in the EU for less than three years or have an annual turnover of less than €10m. There are however additional duties imposed if the new Provider receives more than 5 million unique visitors a month. Whether the intended balance in Article 17 to protect rightholders and simultaneously not discourage start-ups is pitched at the right level will not be known until national implementation takes place over the next two years.

The passage of the Directive follows much debate by both rightholders and large online platforms. The interpretation of the wording of the Directive’s provisions is very likely to continue to be debated for many years to come.

https://www.eversheds-sutherland.com/global/en/what/articles/index.page?ArticleID=en/tmt/EU_Copyright_Reform

https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32019L0790&from=EN

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