Two months ago, the deadline for the implementation of the controversial EU Copyright Directive (and, more precisely, Directive EU 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC) expired. And even if the Member States are widely in delay with its transposition it will come into effect, sooner or later, all over the European Union.
What are the most discussed changes it’ll bring for all those interested in the copyrighted content?
1. Platforms’ liability – changes for online content-sharing service providers (OCSSPs)
The most controversial provision in the EU Copyright Directive has been art. 17 regarding the online content-sharing service providers (‘OCSSPs’). OCSSPs are understood as platforms permitting users to share a large amount of copyright-protected works publicly, and which organise and promote such content for profit-making purposes. Therefore, OCSSPs are for example YouTube, Tik Tok, Twitter and Facebook. Now, they’ll have some new responsibilities that may reflect also on their users.
For those who don’t know, until now the liability of all internet service providers in the EU was governed by the so-called ‘notice and takedown’ procedure. That procedure is the result of the ‘safe harbour’ outlined in the E-commerce Directive, according to which the hosting internet service providers are not liable for the content shared by their users if they don’t ‘have actual knowledge’ about the infringement and, upon obtaining such knowledge, act ‘expeditiously to remove or to disable access to such information’ (see art. 14 of the E-Commerce Directive). Therefore, if such a portal receives a credible notice about the infringement, it is obliged to ‘takedown’ the possibly infringing content and investigate the case. What’s important, art. 15 of the E-Commerce Directive specifies that these obligations cannot lead to an obligation of the internet service providers to monitor the content they store. And this is about to change for the OCCSSPs.
In particular, the ‘notice and takedown’ procedure to many seemed not enough to protect the right holders of the copyrighted content. And art. 17 has been introduced to the rescue. It reverses the previous liability system, making OCSSPs take care of copyrights before receiving any ‘notice’. Specifically, the OCSSPs have to obtain an adequate licence from the right holders to publish their creative works. In absence of such an authorisation, to avoid liability the OCSSP must demonstrate it has: (i) used its best efforts to obtain an authorization; (ii) used its best efforts to ensure the unavailability of content for which the right holders have provided the OCSSP with the relevant and necessary information; and, in any event (iii) acted expeditiously, upon receiving an adequate notice from the right holders, to disable access to, or remove from their websites, the notified content and used its best efforts to prevent their future uploads (see art. 17 para. 4 of the EU Copyright Directive).Â
Finally, art. 17 para. 7 of the EU Copyright Directive establishes that the obligations included in that article for the OCSSPs shall not result in the prevention of the availability of works or other subject-matter uploaded by users, which do not infringe copyright and related rights. In the same paragraph, there is also a reminder regarding the free use exceptions that allow for the use of copyright content, such as quotation, criticism, review, parody etc. and which use cannot be excluded or hindered by the regulations introduced.
2. More free use
Furthermore, the EU Copyright Directive provides, in contrast to previous legislation, certain mandatory free use derogations:
- text and data mining exception for the purposes of scientific research (art. 3) – the EU Copyright Directive has introduced a free use exception in case of text and data mining activities (often carried out through web scraping) if they are carried out for the purposes of scientific research. However, it does not apply to everyone willing to make such scientific research: only research organisations and cultural heritage institutions can benefit from that exception and it refers to works or other subject-matter to which those organisations and institutions have lawful access;
- text and data mining exception for anyone (art. 4) – another exception regarding text and data mining activities introduced by the EU Copyright Directive is broader. It is granted to everyone who wishes to extract works and subject matter that have been lawfully accessed. However, there’s a catch: that exception does not apply if the right holders expressly restrict the use of such works ‘in an appropriate manner’ (for example through machine-readable means in the case of content made publicly available online). On this matter see more here
- digital and cross-border teaching activities exception (art. 5) – it allows ‘the digital use of works and other subject matter for the sole purpose of illustration for teaching’. This exception applies to the extent justified by the non-commercial purpose to be achieved. Moreover, it applies on condition that such use: ‘(a) takes place under the responsibility of an educational establishment, […]; and (b) is accompanied by the indication of the source, including the author’s name, unless this turns out to be impossible’;
- preservation of cultural heritage (art. 6) – this exception provided for by the EU Copyright Directive operates only for preservation purposes. In particular, it allows cultural heritage institutions to make copies of any works or other subject-matter that are permanently in their collections, in any format or medium, for purposes of preservation of such works or other subject matter and to the extent necessary for such preservation.
These exceptions have quite a narrow scope, partly repeat those already existing (in particular in the Infosoc Directive) and they probably won’t add much value in terms of free use.
3. Press publishers’ rights – not a ‘link tax’
In the digital world, press publishers are often not protected enough, when certain portals aggregating news benefit from republished articles without paying fees. In an attempt to specifically regulate the publishers’ rights, the EU Copyright Directive has introduced a specific provision intended to protect additionally the digital news portals.
Consequently, according to article 15 of the EU Copyright Directive, the publishers of press publications (established in the EU) must be ensured the exclusive right of reproduction and communication to the public. Therefore, if another subject wants to make use of such a protected content, press publishers will be entitled to receive fair compensation under national law.
It’s worth noticing that this provision indicates that such rights ‘shall not apply in respect of the use of individual words or very short extracts of a press publication’. In fact, the proposal of the EU Copyright Directive did not include that specification and the huge debate arose around the suspicion that the EU wanted to introduce the so-called ‘link tax’. Specifically, many people feared that such a provision would mean the end of the internet as we know it as it would not allow the portals to view even the snippets of articles together with the link to it. The critics meant publishing the links in this way:
To calm down the waters, the final version of the EU Copyright Directive specified that such snippets may still be published.
Furthermore, the new right doesn’t last forever: only for two years after publication, counted as from 1 January of the year following publication.
Finally, the EU Copyright Directive entitles also authors of works incorporated in press publications to an appropriate share of revenues received by press publishers.