DSM Copyright Directive: leaked Council draft

Published on 1st Sep 2017

A compromise proposal for the draft DSM Copyright Directive has been leaked from the Council of the EU.

The draft suggests that the fate of the controversial press publishers’ right is still in the balance, as the document contains two alternative sets of amendments to these provisions.  One option would see the Commission’s proposal for a new neighbouring right for press publishers kept largely in the form originally proposed; but the other would see this replaced with merely a rebuttable presumption that press publishers have the right to licence and enforce existing rights concerning the digital use of the works and other subject matter included in their press publications.

In contrast, it seems that the Council will endorse the Commission’s proposal that information society service providers that store and provide access to significant amounts of copyright protected works (major content sharing platforms such as YouTube and Facebook being very much in mind) should have a legal obligation to take appropriate and proportionate measures to prevent the availability of unauthorised content on their platforms or ensure that appropriate licence fees are paid under agreements reached with rightsholders.  Indeed, the Council may push for greater protection for rightsholders, with an alternative proposal in the leaked draft including a provision that would see information society service providers that store and are actively involved in providing access to the public of copyright protected works (e.g. by optimising the presentation and promotion of those works) being treated as performing an act of communication to the public.

The Council of the EU is due to discuss the compromise proposal on 11 and 12 September 2017.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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