EU Copyright Directive 2019
The EU copyright backs artists in the evolution of digital copyright law and the new copyright directive. A new starting point for competition, content and copyright.
The writer is a copyright lawyer, owner and principal solicitor at PAIL® Solicitors. Peter Adediran’s specialist niche area of practice is copyright law for SME’s, artists and management. Contact Peter Adediran on +44 (0)207 305-7491 or by email to email@example.com.
The EU Copyright Directive is Here
The proposed new EU Copyright Law 2016 that copyright lawyers, artists, management and media companies have been waiting for, see my earlier article has been passed. The European Parliament voted 348-274 on the 26 March 2019 to approve the Proposed Directive On Copyright In The Single Market – EU Copyright Directive.
The new copyright directive is not law as is (although some of its provisions are mandatory); most of its provisions will have to pass into the local law of member states by 2021.
Other provisions of the copyright directive will need to be implemented by 2022.
The diverse cultural differences across EU member states will mean its implementation is likely to be different across the EU.
The Copyright Law Build Up
The new directive builds on Directive 2001/29/EC and complements several previous directives seeking to tackle the digital world and harmonise (the so-called digital single market) copyright law in all EU member states.
The current copyright directives are:
– Database Directive (Directive 96/9)
– The Copyright Directive Harmonisation of certain aspects of copyright (Directive 2001/29/EC)
– Rental and Lending Copyrights Directive 2006/115/EC
– Computer Programs Copyright Directive 2009 /24/EC
– Orphan Works Directive 2012 /28/EC
– Collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market Directive 2014/26/EU.
The proposed copyright directive specifies that the current copyright directives are not affected by its provisions. * The new directive aims to provide clarity in what was a fragmented copyright regime under the 2001 directive, promote the European culture and consolidate the proper functioning of the digital single market.
Reasons And Objectives
The reasons and objectives for the proposed copyright directive are summed up in the preamble to the proposal referring to:
rapid technological developments, new business models, and legal uncertainty for rights holders and users, as regards specific uses, including cross-border applications, of works and subject matter in the digital environment.
Stakeholders In The Copyright Battle
The two principal stakeholders affected by the proposed directive are Information Society Services (ISS), also known as Online Service Providers (OSPs) and Content Creators (CCs).
OSPs are online platforms that store, index, transmit, cache or distribute content including infringing copyright content on or through their servers, system, network, or website.
These organisations include video sharing websites like YouTube, social media websites, for instance, Facebook, blogs & blog networks, search engines and other platforms that disseminate content.
Copyright Content Creators (CCs)
Content that is capable of copyright created and disseminated through the platforms provided by OSPs are the work of CCs. This copyrighted content can be user-generated, owned media or third-party creative works including:
- illustrations; and
- a combination of any of them
The Copyright Directive’s Focus
The proposed copyright directive focused on both the educational and commercial effects of copyright within the EU.
Copyright and Education
First acknowledging that the use of materials protected by copyright is essential to the learning process by, in the words of the explanatory memorandum to the proposed directive:
“…enhancement of cross-border access to copyright-protected content services, facilitate new users in the field of research and education.”
Copyright and Commercial Use
Second, compel OSPs to give a fairer deal to CCs by encouraging the negotiation of licensing agreements to publish their content.
In the words of the explanatory memorandum to the proposed directive:
“Clarify the role of online services in the distribution of works and other subject matter.”
Brief History of Copyright Commercial Use in Digital Media
Arguably, the balance of power has been in favour of OSPs since the start of the commercial Internet.
The safe-harbour provisions passed in Europe and the United States in the 1990s and early 2000 favoured ISS over CCs.
Arguably, without the balance of copyright protection falling in favour of OSPs you would not have – YouTube, Amazon and thousands of other platforms that have benefited from the less stringent copyright regime.
The call for the balance to be fairer by content creators has been going on for two decades, and the proposed directive seeks to facilitate more cooperation among OSPs with CCs to detect and deal with online copyright infringement.
Anyone following the development of the context of the law in this area will be aware that the proposed directive is the evolution of the battle of copyright politics between culture and competition.
The proposed changes in the directive are severe. They will affect OSPs by increasing the costs of policing copyright infringement and negotiating better deals with CCs. OSPs will need to acquire more effective content filtration software and hire specialists in accounting for royalties and other licensing related financial matters. Whilst digital music may already be familiar with licensing publishers and other OSPs will be entering new territory.
However, in my view, the improved new copyright regime will also empower CCs which will lead to better quality content.
While the copyright directive comes with better provisions for a creator’s intellectual property, it provides for several reinforced copyright compliance regulations for small, medium, and large OSPs.
Controversial Articles In Copyright Directive
The proposed EU copyright directive most controversial and relevant provisions now superceeded were Articles: 11, 13 and 14. The passed directive Article 17 was formerly the controversial Article 13 of the proposed directive.
Article 15 (Formerly Article 11)
Article 15 features in Title IV – Protection of press publications concerning online uses
Article 15(1) states that press CCs shall receive the protections for the digital use of their works as set out in – Copyright reproduction rights Article 2 and – Copyright broadcasting rights Article 3(2) Directive 2001\29\EC. In other words, press publishers are giving the right to negotiate licensing for their works with news aggregators.
Small snippets are permitted although there is no clear definition of “very short extracts”.
Hyperlinking does not require a licence so linking to part of a press article on a blog or social media is not caught by the directive.
Actual authors should share in prublioshers revenues subject to comntractual arrangements and employment contracts.
There is an expiration timeline of 2 years after the press publication is published by the news aggregator.
Article 15(1) of the proposed directive is also subject to the exceptions in Article 5 to 8 Exceptions and Limitations of the earlier Directive 2001\29\EC.
Press publications do not include blogs or sites not under the editorial control of a news publisher.
Where nes publisher owns legal and beneficial title to the works then publsiher should be entitles to a revenue share of licensed non-commercial activity i.e.
- Text and Data Mining
- Scientific Research
- Cultural Research
Article 17 (formerly Article 13)
Article 17 is contained in Chapter 2 Certain uses of protected content by online services.
Article 17’s straightforward aims are: (1) To clarify the status of OSPs responsibility for the copyright content on their websites without the consent of the actual copyright holder. (2) It seeks to provide rightsholders with greater control of the use of their copyright content and their ability to negotiate licensing agreements with OSPs without OSPs being able to unilaterally decide the terms of the licensing agreements, for example, there can be no fixed license fee.
Article 17’s main effect, which is to make OSPs liable for copyright infringement on their platforms met with significant resistance from OSPs like YouTube.
Companies like Universal Music Group Vivendi weighed in on the side of CCs.
Other stakeholders like the global music industry agencies and publishers as well as small individual artists were also vocal in support of Article 17.
OSPs are compelled to strengthen the protection of user-generated copyright content from copyright infringement, and they must put in place complaints procedures and other best practice processes.
OSPs must make best efforts in accordance with high industry standards of professional diligence. However, there is no general monitoring obligation on OSPs and no clear definition of “best efforts”. Article 14(1) Directive 2001(29)/EC that gives safe harbour to hosting platforms will no longer apply.
Incidentally, on the 08 April 2009, the UK Department for Digital, Culture, Media & Sport published Code of Practice For Providers of Online Social Media Platforms.
If implemented into company procedures and policies, the code can assist OSPs in complying with the proposed directive.
Article 18 (Formerly Article 14)
Chapter 3 of the proposed defective features Article 18 – Fair remuneration in contracts of authors and performers –
– Transparency obligation.
OSPs are compelled to ensure that artists and performers receive clear and transparent information about the exploitation of their works and performances. This obligation focuses on revenue generated and monies due to artists from the use of such copyright works and performances. Digital music sites will already be familiar with accounting for royalties and other revenue stream models for CCs, but it will be new for other audiovisual sites like gaming.
So who is affected By The Copyright Directive?
The proposed directive supports independent artists. Previously, large musical, digital, or print artists received adequate copyright protection, namely being able to afford the representation that is needed.
Previous copyright laws did not necessarily protect independent artists. The proposed directive ensures that OSPs will have greater accountability for the distribution of copyrighted material.
With the increasing constraints on reusing the material of others in the EU, some influential OSPs may lose some copyrighted material.
To comply with the restrictions in the proposed copyright directive, small to medium size OSPs will most likely need to employ filtering software. These software solutions are expensive, and they will be costly for smaller internet platforms.
There has been a fair amount of pushback by OSPs on the costs of complying with the proposed copyright directive. Some compromises allowed these smaller internet companies to be exempt, namely, if they met three specific criteria.
- Under €10m in revenue per year;
- Less than 5m users, and
- Younger than three years old.
The News Agency
These new proposed regulations will also benefit news agencies and other publications by giving them increased control over their copyrighted created content. The so-called “link tax” in Article 15 (Formerly art. 11) accomplishes this.
The link tax does not immediately charge people for using a hyperlink, as the pseudonym implies. The link tax empowers the press to exercise their rights over their articles. Companies like Google will not be able to show full snippets of EU news articles anymore without first reaching an agreement with the publisher.
The BigTech Company
As you can probably imagine, some of the most significant opponents of the proposed copyright directive are the Big Tech companies; like YouTube, Google, Facebook, Twitter.
Not only will big tech companies need to ramp up the amount of filtering that they are doing, but it opens them up to potential lawsuits for removing content incorrectly or publishing content mistakenly.
The artists argue that the problem is not that they get too little, but that big tech companies get too much of the revenue from their works. The prevailing sentiment amongst artists is that the proposed directive will level the playing field.
The proposed additional legislation applies to organisations doing business in the EU or that are EU residents. While each specific country of the EU will need to decide how stringent they will be when implementing the copyright directive, you can be sure of its implementation.
Whether you are a part-time musician, a talent agent, producer or manager, it is imperative that you understand the implications of the copyright directive.
We’d be delighted to help you protect your copyright. If you are involved in a digital copyright infringement case you may find this article useful. Contact us today at firstname.lastname@example.org to get started or complete either our free copyright dispute quotation form or our free copyright registration quotation form.
By Peter Adediran
09/07/2019 Originally published 13.04.2019
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