The Copyright in the Digital Single Market Directive: text agreed in trialogue discussions

The long and tortuous passage of the Copyright in the Digital Single Market Directive may finally be coming to an end with an agreement reached between the European Commission, Parliament and Council on Wednesday, 13 February 2019. To be finally adopted, the Directive still needs to be approved by the Council (likely) and voted through by the Parliament (which is perhaps not guaranteed).

What has been agreed?

The two most controversial provisions in the Directive are the new press publication right (Article 11) and increased obligations on content sharing platforms if they are to avoid liability for copyright infringing content on their platforms (Article 13). The full text of the Directive is available here.

Press publication right: Article 11

The press publication right is intended to give publishers greater leverage to negotiate licensing deals with news aggregators, search engines and other online platforms that link through to their content. Although it has been dubbed a 'link tax' the new right explicitly does not prevent acts of hyperlinking. However, it does cover the reproduction of short extracts from press publications – such as headlines, short snippets of an article or photographs (although not "individual words or very short extracts"). The reproduction of these extracts will generally be required to enable consumers to understand what content is being linked to, so online services that provided links to news articles and other press publication content will in practice need to obtain licenses in the future.

Although larger publishers have been strong advocates for Article 11, there have been concerns from some smaller publishers that their lack of bargaining power means that at best they will be unlikely to negotiate significant licence fees and at worst online platforms and search engines will simply stop linking to their content.

The press publication right does not apply to private or non-commercial uses of press publications – a provision that is intended to ensure that it does not prevent sharing of articles by individual users.

Another important change in the agreed text is that the press publication rights will expire only two years after publication.

Increased liability for platforms: Article 13

Article 13 has seen the most changes to the text through the legislative process. The end result is that under Article 13, established commercial content-sharing platforms will be considered to be performing an act of communication when they provide access to copyright protected works or other protected subject matter (such as sound recordings or broadcasts). As a result, content sharing platforms will be required to enter into licensing arrangements with rightsholders and will otherwise be liable for infringing content on their platforms unless they have satisfied three cumulative requirements:

• they have made best efforts to enter into a licensing deal;
• they have made best efforts to ensure the unavailability of copyright protected works and other subject matter which have been identified to them by rightsholders; and
• they act quickly to remove copyright protected works and other subject matter when notified of specific content and then make best efforts to prevent future uploads in accordance with 2) above.

Article 13 provides that new (less than three years old) online platforms with a turnover of less than €10 million will not be obliged to prevent future uploads, but will still need to make best efforts to enter into licensing deals and remove specific infringing content that is notified to them.

The adoption of this Article 13 will be generally seen as a win for rightsholders and a blow to Google – which operates YouTube, the content sharing platform that Article 13 is mostly targeted against. However, the final text could have been worse for Google and it is still difficult to assess how this change of the law will actually impact YouTube's and other online platforms' revenue streams. This will in large part be dependent on how the 'best efforts' requirements are interpreted within national legislation and then by national courts and ultimately the Court of Justice.

What happens next?

The European Council and European Parliament both still need to approve the agreed text. The Parliament vote is expected to take place in late March, before it breaks up for the elections at the end of May. It is therefore possible that Parliament could still vote against the proposals. Assuming that Parliament does vote in favour, the Directive will be formerly adopted shortly thereafter. However, Member States will be given two years to implement the Directive into their national laws, so it will still be some time until this legislation comes into force.

Whether the Directive will eventually apply in the UK will also depend on when the UK leaves the EU and is no longer required to implement Directives under the terms of any transition period. The transition period in the current version of the Withdrawal Agreement is due to end before the Directive needs to be implemented but this transition period is extendable which could mean the UK will be required to implement the Directive.