With the deadline for the transposition by EU members of the EU’s new Copyright Directive into national law having recently expired, copyright in Europe has taken a new shape and dimension, aligned with the new realities which intellectual property right holders face in today’s digital world.
Digital technologies have transformed the way creative content is produced, distributed and accessed. A revamp of the EU rules that regulate copyright was necessary to address this new reality.
One of the most controversial aspects in the new directive is the regulation of online content-sharing platforms. The new rules strengthen the position of creators and right holders, such as music or film producers, to negotiate and be paid for the online use of their content by certain user-uploaded content platforms.
Such platforms will now be carrying out acts protected by copyright when they offer public access to copyright-protected works or other protected subject matter uploaded by users. So in all such cases, they will now need to obtain an authorisation from the right holders for the content uploaded on their website.
In its recently-published guidance, the European Commission indicated the steps that must be taken by such platforms should no such authorisation be forthcoming, despite the service provider’s best efforts. Such platforms must then make best efforts to ensure the unavailability of unauthorised content regarding which right holders have provided necessary and relevant information, act expeditiously to remove any unauthorised content following the receipt of a notice and make best efforts to prevent future uploads.
The ‘best effort’ obligation does not entail specific means or technology. The directive does not impose upload filters; nor does it require user-uploaded platforms to apply any specific technology to recognise illegal content.
The new directive is seeking to strike the right balance
Online service providers that have existed in the EU for less than three years, have a turnover of under €10 million and fewer than five million monthly users, benefit from a lighter regime. In cases where such service providers have no authorisation granted by right holders, they only have to prove that they did their best to obtain an authorisation and that they acted expeditiously to remove the unauthorised works notified by right holders from their platform. However, when the audience of these small companies is higher than five million monthly unique viewers, they will also have to prove that they have made their best efforts to ensure that works that have been notified by right holders do not reappear on the platform at a later stage.
A new press publishers’ right applies to online uses of press publications by information society services providers, such as news aggregators or media monitoring services. This new right strengthens the bargaining position of press publishers when they negotiate the use of their content by online services.
Journalists themselves will benefit economically from this right since the directive provides that they must receive an appropriate share of the revenues generated by it. However, the new rules make it clear that acts of hyperlinking and the reuse of single words or very short extracts of press publications by online platforms and services is excluded from the scope of this new right. This means that online service providers remain free to perform such acts without requiring an authorisation by press publishers. Also, the directive does not target individual users who remain free to share content on social media and links to websites and newspapers (hyperlinking).
The Copyright Directive protects freedom of expression by making it clear that the use of existing works for purposes of quotation, criticism, review, caricature as well as parody are explicitly allowed. This means that memes and similar parody creations can be used freely. The interests of the users are also preserved through effective mechanisms to swiftly contest any unjustified removal of their content by the platforms.
Exceptions and limitations to copyright exist to facilitate the use of copyrighted content in certain circumstances and achieve public policy objectives such as education and research. The new rules regulating exceptions are aligned with the use of digitalisation. The directive introduces four mandatory exceptions to copyright. These relate to text and data mining (TDM) for research purposes, a general TDM exception for other purposes, teaching and education, and the preservation of cultural heritage. A new preservation exception allows libraries and other cultural heritage institutions such as museums to make copies of the works in their collections, by taking advantage of new digital preservation techniques.
The new Copyright Directive as implemented by the member states is all about seeking to strike the right balance between the protection of freedom of expression and just remuneration of those who contribute to innovation and creativity. This is surely no easy task as the numerous consultations to this new law have proven.
Nonetheless, it is only a harmonised approach to copyright law by all member states that will ensure the full protection of the rights of both creators and citizens alike, wherever in Europe they might be, and that the advantage of a single market can be availed of to the utmost extent possible.
Mariosa Vella Cardona, freelance legal consultant