CDSM Directive on the verge of its implementation: mess and uncertainty

The EU Directive 2019/790 on Copyright in the Digital Single Market (‘CDSM Directive’) aims to reform copyright law in the EU, providing the greatest modification in the field since the adoption of the 2001/29 EC Directive on the harmonisation of certain aspects of copyright and related rights in the information society.

CONTROVERSIES

The CDSM Directive was adopted in the context of numerous controversies and notwithstanding unresolved doubts. The provision that raised (and still raises) the strongest emotions is without a doubt Article 17. In particular, that Article provides for a new liability regime regarding online content-sharing platforms, making them directly liable for copyright-protected content uploaded by users. They may avoid such liability only if they can demonstrate they complied with art. 17 para. 4 (and, therefore, among other things, have made best efforts to obtain rightsholders’ authorisation to allow access to copyright-protected content).  

THE ARTICLE 17 GUIDANCE

Notwithstanding the controversies, the European Commission published the guidance on Article 17 of the CDSM Directive only on 4 June 2021, which means only 3 days (and only 1 working day) before the Directive’s implementation deadline. Indeed, many countries have waited with the transposition until the guidance is issued to avoid errors in the implementation.

IMPLEMENTATION IN PROGRESS

More than a month after the deadline for its implementation, it’s clear the transposition of the CDSM Directive across the EU is far from complete.

Since 17 April 2019, when the CDSM Directive was published, the Member States have had more than 2 years to complete their national implementations. However, so far there are only three that have managed to fully implement the CDSM Directive: the Netherlands on December 2020, which entered into force on 7 June 2021 (with articles 16 and 19 in force since 1 January 2021 and 7 June 2022, respectively); Hungary on April 2021, in force since 01 June 2021; and Germany on May 2021, in force since 07 June 2021.

Furthermore, France and Denmark have adopted the CDSM Directive partially.

In particular, France has decided to split the implementation of the DSM Directive into different delegation laws. And so, art. 15 has been applicable in France already since 24 October 2019. Furthermore, the Law of 18 November 2020 provided for two blocks of articles to be implemented separately: (i) articles 6(2) and 17 to 23 were adopted in France on 12 May 2021 with the Ordonnance no. 2021-580; and (ii) the remaining articles that are supposed to be implemented in a 12-month period.

Also in Denmark, the implementation of the CDSM Directive has been divided into two parts. The legislative proposal on the first part, including Articles 15 and 17, was introduced on 26 March 2021 and passed in the first week of June.

In Italy, like in France, the implementation is being carried out by means of delegation laws, on the basis of an implementation law approved on 21 April 2021. Therefore, the Italian Government is now working on issuing a Legislative Decree implementing the CDSM Directive.

You can follow the updates on the implementation under this link.

NEXT STEPS

Now all the Member States that haven’t yet transposed the CDSM Directive into national laws must proceed with the implementation as soon as possible. The delays in implementation are possibly due to the late issuing of the Article 17 guidance. Furthermore, to blame may be in part the pending CJEU ruling in the matter of the Polish Government’s challenge of the same art. 17 (C-401/19). Specifically, the Polish Government has argued that art. 17 is incompatible with fundamental rights guaranteed by art. 11 of the Charter of Fundamental Rights of the European Union (the right to freedom of expression and information). The Opinion of the Advocate General was issued on 15 July 2021 and advised CJEU to rule that Article 17 is compatible with the EU Charter of Fundamental Rights and should not be annulled.