As the dawn of a new age is not yet upon us, and the long awaited Brexit day (29 March 2019) has been and gone, we must still follow closely the passing of new EU legislation which, until we know what is happening with Brexit, may still end up being implemented here. One such new law is the Directive on Copyright in the Digital Single Market (Copyright Directive) 2016/0280 which has finally been agreed and passed by the European Parliament after two and a half years of deliberating and voting. Interesting that it took the European Parliament more than two years to agree this one directive, yet the UK thought Brexit could be hammered out within a similar time frame!

The Copyright Directive has a twofold purpose, outlined in a recent press release (here), aiming "to ensure that the longstanding rights and obligations of copyright law also apply to the internet" and "to ensure that the internet remains a space for freedom of expression". This dichotomy is what has caused the delay in implementation.

Articles 18 to 22

We wrote about the Copyright Directive back in September last year (see The Return of the EU Copyright Directive and the 'Bestseller Clause') when it had yet to pass through the European Parliament. We discussed the then Article 14 (now 18) 'Bestseller Clause' (giving authors and key performers the right to 'back end' remuneration) and the then Article 15 (now 19) that allows authors and key performers the right to receive information on how their works are being exploited "at least once a year". These remain unchanged in the current proposal.

The provisions also include an alternative dispute resolution procedure and a right of revocation for authors/performers where there is a lack of exploitation under a licence or assignment.

Articles 15 and 17

As part of the current draft of the Copyright Directive, the more controversial Articles, previously 11 and 13, now 15 and 17 respectively, have been considerably softened since the previous draft that received negative press and caused uproar from both sides of the debate, for example:

  • The Article 15 new press right to object to online use of publication by platforms is now limited to 2 years and not 20 years, and does not apply to private or non-commercial uses by individual users;
  • Under Article 15, it will be acceptable to share hyperlinks to news articles and accompany the hyperlink with "individual words or very short extracts";
  • The Article 17 obligation on online service providers to police copyright infringements on their sites now has exemptions for start-ups, open source software platforms (e.g. GitHub) and non-commercial online encyclopaedias (e.g. Wikipedia); and
  • Under Article 17 there is now an express exception for Internet Memes / GIFs: "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".

Furthermore, doubts remain about how the Article 17 obligation will work in practice and there is the possibility of differences in interpretation by different Member States. How far will a platform have to go to escape liability? Will worried platforms over censor (banning even permitted uses) to ensure they are not liable? Does the potential use of automated filtering systems risk freedom of expression? It remains to be seen how far it will really go and further guidance will be required.

The European Commission has, however, clarified that the Copyright Directive is not intended to target individual internet users who can continue to share content online as before, which should alleviate some of the more dramatic fears over "breaking/killing the internet". We will have to see whether this differentiation will work in practice.

Articles 3 to 14

Research organisations, cultural heritage institutions and educational establishments will note that the Copyright Directive includes specific mandatory exceptions and limitations for their use of digital material for educational, scientific research and cultural heritage preservation purposes. There are also provisions that relate to out-of-commerce works, audio-visual works on video-on-demand services, and works of visual art in the public domain.

Change can be good, if managed over time

Change is always scary, but in its defence, the European Parliament has pointed out the following examples of interesting predictions that never came to pass:

  • "telecom companies claimed phone bills would explode as a result of caps on roaming fees; 
  • the tobacco and restaurant lobbies claimed people would stop going to restaurants and bars as a result of the smoking ban; 
  • banks said they would have to stop lending to businesses and people, due to tougher laws on how they operated; and 
  • the duty-free lobby even claimed that airports would close down as a result of the end of duty-free shopping in the single market."

Time will tell whether the Copyright Directive will have the desired effect of obliging giant internet platforms and news aggregators to pay content creators fairer sums and whether it will better enforce the existing rights of creatives and journalists. Given the contentious nature of this directive, whilst it looks set to become law across the EU, there is likely to be continued pushback from critics and this will play out through legal challenges in national and EU courts. Watch this space.