Implementation deadline for EU Digital Copyright Directive

EU – CONTENT AND AUDIOVISUAL MEDIA

The Directive entered into force on 6 June 2019 and EU Member States have until 7 June 2021 to transpose the Directive into their respective national legislation. The Directive seeks to adapt copyright rules to ensure they are “fit for a digital era”.

Key date(s)

• September 2016 – As part of the European Commission’s Digital Single Market Strategy, proposals for a new directive on copyright were initiated.
• 6 June 2019 – The EU Digital Copyright Directive (the “Directive”) entered into force.
• 27 July 2020 – European Commission finalises stakeholder dialogue prior to preparing guidance.
• 7 June 2021 – Deadline for EU Member States to transpose the Directive into national law.

Status

• The European Commission has in place a broad Digital Single Market Strategy which, in 2016, resulted in the initiation of a legislative package to modernise the EU copyright position, particularly in light of rapidly advancing digital technologies which are swiftly changing how new protectable goods, products, and services are produced.
• Following significant lobbying from a wide range of stakeholders, as well as lengthy negotiations and delays, the Directive finally saw its way through the European legislative procedure in 2019.
• Domestic implementation of the Directive is required by Member States by 7 June 2021 and ongoing European Commission guidance is expected to help interpret some of the more complex or controversial articles of the Directive.
• Stakeholders are also expected to enter into a dialogue to determine best practices and harmonise procedures.
• On 27 July 2020 the European Commission issued a consultation on guidance for Member States on the application of Article 17 (formerly Article 13) of the Directive which deals with the use of protected content by online content sharing services. The guidance issued by the European Commission will focus on co-operation between online content-sharing service providers and intellectual property owners. The consultation ended on 10 September 2020 and the European Commission is currently considering the responses and finalising the guidance with a view to adoption in early 2021.

 What it hopes to achieve 

• The Directive comprises part of the European Commission’s Digital Single Market strategy, an aspect of a broader initiative to adapt copyright rules to ensure they are “fit for a digital era”.
• The Directive aims to modernise copyright rules, in particular, by providing better choice and access to online content to users across borders and providing fairer protection for rightsholders in relation to the use of their material online, creating a fair and sustainable marketplace for creators, the creative industries, and the press.
• The Directive looks to rebalance the position between larger technology companies and the individuals who create and distribute protected subject matter via the former’s platforms, products, and services

Who does it impact? 

• A vast array of stakeholders, including copyright holders, technology companies, and online platforms, who will be required to adhere to the new rules, although there will be a lighter touch, less strict regime for smaller platforms in respect of some obligations.

Key points 

1. Use of protected content by online content sharing

• • Article 17 of the Directive seeks to protect rightsholders from unauthorised distribution of ‘online content sharing services’ (e.g. by platforms such as YouTube, Dailymotion, and Soundcloud, amongst others) by requiring these services to seek a licence or authorisation from the copyright holder for the content they are hosting.
  • This is intended to enable value creators and rights-holders to better monetise and control the distribution of their content on digital platforms.
  • However, criticism has been raised by the active obligation and liability placed on content sharing services who will now be responsible for content contained on their platforms.
  • Formerly such services were not liable and only under an obligation to remove infringing content where asked by rightsholders. The new position though requires a more active role involving filtering copyrighted material from their sites (where there is no licence or authorisation in place) which has also led to fears of the mass removal and banning of content.
  • There are, however, a number of provisos and compromises in the Directive (such as the service provider demonstrating best efforts to get permission, that it acted quickly, or that it had done all it could to not make the material available), which would limit the potential liability of online content sharing service providers in certain circumstances

2. Protection of press publications concerning online uses

• • Another key (and controversial) provision in the Directive is the introduction of an enforceable right of press publications to prevent further publication of their works by, or to require a licensing fee from, news aggregators or similar media monitoring services (Article 11).
  • Critics have argued that this provision effectively imposes a requirement to pay for a link to a website, however, as with Article 17, there are a number of limitations on this provision, including a two year limit that applies to the press publication right following the date of the relevant publication.

3. Impact of Brexit on future reform

• • Given the UK’s departure from the EU, as the implementation deadline falls outside the transition deadline of 31 December, the UK will not be obligated to implement the Directive and the Government has said it does not intend to do so.
  • It is not yet clear whether the Government may consider to fully or partially implement any aspect of the Directive under a different initiative at a later date.

This blog post provides an overview of a key recent or upcoming development in digital regulation in the UK or EU as part of our horizon scanning timeline which can be found below.

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