iConsumer covers the approval of the new EU Copyright Directive, which opened discussions as to whether it is a threat or an opportunity for the Internet and how and if it will change it.
On 15 April 2019, the European Council finally adopted the controversial Directive on copyright and related rights in the Digital Single Market that amends Directives 96/9/EC and 2001/29/EC, which will be published on the Official Journal of the EU in the next months.
The Directive provoked controversies even on the day of the vote of the European Council. Indeed, as many as six Member States (i.e., Finland, Italy, Luxembourg, the Netherlands, Poland, and Sweden) rejected the text of the Directive and other three countries (i.e., Belgium, Estonia, and Slovenia) abstained in the final vote. The other Member States voted in favor of the Directive.
The aim of the Directive is to reform and harmonize domestic laws on the copyright of the EU Member States to create a single digital market in the EU, i.e., to establish common rules to protect creative works better online.
In the course of its difficult approval, the Copyright Directive raised questions and concerns on the effects that the new rules would entail for the Internet content. In particular, activists and scholars have claimed that several provisions may threaten the freedom of expression on the Internet.
What changes with the new Copyright Directive?
The new EU Copyright Directive attempts to address several different issues, that are to be distinguished into three categories:
Adaptation of copyright exceptions/limitations to the new digital contexts
The Directive introduces mandatory exceptions to copyright for text and data mining (Article 3 of the Directive), online and cross-border teaching activities (Article 5), and the preservation and online dissemination of cultural heritage (Article 6).
Improvement of licensing practices to ensure more extensive access to creative content
The Directive provides for harmonized rules furthering, among other things, the exploitation of out-of-commerce works (Article 8), issuance of collective licenses with extended effect (Article 12), and rights clearance for films by video-on-demand platforms (Article 13).
Realization of a well-functioning marketplace for copyright
The Directive provides for a new right for press publishers for the online use of their press publications. Authors of works incorporated in the press publication will be entitled to a share of the press publisher’s revenue deriving from this new right.
The highly controversial copyright provision on sharing of content on the Internet
The most controversial provisions are included in Article 17 of the Directive, which states that online content sharing service providers perform an act of communication to the public or an action of making available to the public when they give access to copyright-protected works or other protected subject-matter uploaded by its users. Therefore, online platforms must obtain an authorization from the relevant rights holders, e.g., by way of appropriate license agreements.
Furthermore, if copyright-protected content is uploaded to a platform without granting an appropriate license, the platform will be considered liable for the violation. However, this does not apply in some restricted circumstances. In any case, such rule is restricted for platforms having annual turnover below 10 million and “new online content-sharing service providers the services of which have been available to the public in the Union for less than three years.”
According to commentators, Article 17 is the outcome of the clash of two opposite forces between rights holders who criticized that the current framework impacts on their capacity to convene adequate remuneration for the use of their works and those that deemed Article 17 as a way to censor through extensive use of filters and have asked for provisions to preserve the Internet environment.
The Directive has now passed, and the EU Member States will have 24 months from its publication on the Official Gazette of the European Union to transpose the new rules into their national law. As happened for the InfoSoc Directive, there may be several differences in the implementation of the rules in the different Member States and may create different legal regimes throughout the EU, which might be against the rationale behind the Copyright Directive.
We will see if the new EU Copyright Directive will change the Internet as we know it.