The European Union’s controversial copyright Directive

Written on 24 Apr 2019

The European Parliament and the Council's new Directive on copyrights in the digital single market, whose main objective is to decrease the differences amongst European regimes in terms of intellectual property rights considering technological developments and new channels of distribution, has caused some headlines with the introduction of articles 11 and 13, analysed in this article.

The Council of the European Union approved the Directive on Copyright in the Digital Single Market (hereinafter, the “Copyright Directive“) on 15 April 2019, after its approval in the Plenary of the European Parliament on 26 March, and now Member States have a two year period to adapt this legislation to their domestic legal systems.

The Copyright Directive has its origins in the Strategy for the Digital Single Market, which was adopted in May 2015, in order to “decrease the differences amongst existing national intellectual property rights schemes and allow wider online access to works by users across the EU“, taking into account the need to take a step forward and update the existing legislation dating from 2001 (Directive 2001/29CE) and originating in the Copyright Treaty signed in Geneva in 1996.

The main objective of the Copyright Directive is to harmonise the Union Law applicable to copyright and related rights in the internal market in order to adapt it to new needs, considering the rapid technological evolution transforming at the speed of light the way works are created, produced, distributed and exploited. The Copyright Directive also establishes rules to adapt certain exceptions and limitations to copyright and related rights, rules to facilitate certain licencing practices and rules designed to achieve a well-functioning marketplace for the exploitation of works and other services.

As mentioned, one of the articles that has generated the most controversy has been article 11 (now article 15) of the Copyright Directive. This article, concerning the protection of press publications regarding online uses, grants publishers of press publications (media) the right to authorise and/or prohibit the online use of the contents they have created by information society service providers. In short, article 11 gives publishers of press publications the right to require digital platforms (such as Google News) to pay a licence for the partial or total use of their content on the internet. It should be noted that the publication of the mere link to this media will be exempt from this payment. The Google News example is not trivial, since the company has already pronounced itself through a study, published as a post on its official blog stating that with this imposition, “the reduction of information in the search results, without writing a description of the news or including photos, would suppose the loss of 45% of the traffic for press websites“.

On another note, article 13 (now article 17), which regulates certain uses of content protected by online services, requires Member States to enforce the obligation for service providers that share online content (for example, YouTube), to obtain from the owners of the content (the authors) a licence to communicate to the public the contents they upload that are protected by intellectual property rights, understanding an act of communication to the public as “access to works protected by copyright or other protected services uploaded by its users“. Undoubtedly, this is the article that has caused quite a stir due to its cost and difficulty to implement since, in the event that it does not have the corresponding licence, the platform must adopt the necessary measures to prevent the infringing contents from becoming available. In relation to this article, Google has also spoken up, stating that this measure “would damage the thriving creative economy in Europe, including the YouTube creative community” because “the draft rules of the directive are not carefully balanced.”

In addition, the Copyright Directive introduces other novelties such as article 5, which authorises the digital use of works and other services for educational and pedagogical purposes, provided that such use takes place under the supervision of a teaching centre, either in its premises or through its secure electronic environment and including the name of the source (author’s name). Article 6, on the other hand, allows the institutions responsible for cultural heritage to make copies of the works or other services permanently found in their collections, in the format and medium they choose, in order to preserve the works.

Having said this, we will have to see what impact do all the novelties that have been introduced by the Copyright Directive, both for the information society service providers – in order to verify their capacity to adapt – and for the authors, whose rights, in principle, should be more protected. Likewise, it will be necessary to evaluate how the Copyright Directive fits into the domestic regulations of each of the Member States and if its approval actually contributes to the proper functioning of the internal market, facilitating cross-border access to works and services.