The EU backs artists in the evolution of digital copyright law and the new copyright directive. A new starting point for competition, content and copyright.
The Proposed 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 arrived. 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.
Final Copyright Directive Approval Pending
Final approval will take place on the 15 April 2019 when the Council of the European Union will discuss the text of the proposed copyright directive.
Although the final approval is usually just a formality, technically the copyright directive still has to be formally approved otherwise it’s back to the drawing board.
The proposed directive will have to pass into the local law of member states by 2021 if adopted.
The Copyright Law Build Up
The proposal 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.
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
together commonly known as “works”.
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 negotiating 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.
However, in my view, the improved new copyright regime will also empower CCs which will lead to better quality content.
While the proposed copyright directive comes with better provisions for a creator’s intellectual property, it provides for a number of 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 for the digital media and intellectual property services I deal with are Articles: 11, 13 and 14.
Article 11 features in Title IV – Protection of press publications concerning digital uses
Article 11(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.
Article 11(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.
There is an expiration timeline of 20 years for reproduction and broadcasting rights from the initial publication of the press publication.
Article 13 is contained in Chapter 2 Certain uses of protected content by online services.
Article 13’s straightforward aim 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 13.
OSPs are compelled to strengthen the protection of user-generated copyright content from copyright infringement, they must put in place complaints procedures and other best practice processes.
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.
Chapter 3 of the proposed defective features Article 14 – 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.
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 copyright 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 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 proposed 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 proposed copyright directive.
We’d be delighted to help you protect your copyright.If you are involved in a digital copyright infringment 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
This article deals with the effect of the proposed copyright directive on small-medium business owners, artists and management. If you are seeking advice on how to protect your copyright works, you must take the opportunity to go and seek professional legal help from a solicitor or barrister. The information and any commentary on the law contained on this web site are provided free of charge for information purposes only. Every reasonable effort is made to make the information and analysis accurate and up to date, but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by PAIL®Solicitors. The information and commentary do not and are not intended to amount to legal advice to any person on a specific case or matter. Obtain an accurate, personal opinion from a lawyer about your case or matter. Do not to rely on the information or comments on this site. We bear no responsibility for the content or accuracy of linked sites.