Christiane Stuetzle and Patricia C. Ernst
Copyright, Media + Entertainment | Europe, Technology, Media + Telecommunications | Europe, Intellectual Property Litigation, and Technology Transactions
Almost two and a half years after the EU Commission proposed a Directive on copyright in the Digital Single Market, the legislative procedure finally hits the homestretch – with the last plenary sessions of the EU Parliament (March 25 - April 18, 2019) marking its likely end (the approval of the EU Council is considered a formality). If the current proposal passes this last hurdle, the following rules would apply, constituting an improvement regarding the feasibility and balance of liability, but restricting exceptions for smaller enterprises and still leaving room for interpretation regarding some of its terms:
If the current draft Directive is approved, it will enter into force on the 20th day following its official publication. Member States are then being granted a period of 24 months to implement the Directive’s provisions in national law. If a Member State does not comply with the implementation period, the Directive becomes directly applicable.
Ensuring that “consumers and creators can make the most of the digital world” constitutes a crucial key action in the European Commission’s Digital Single Market (DSM) strategy, launched in May 2015. Fundamental disagreements on controversial provisions Article 11 and 13 of the draft Directive, however, resulted in a protracted legislative process (see our Client Alerts on the Directive’s development: “EU Copyright Reform Update - How Far Have We Come?”; “EU Copyright Directive: Spotlight on Upload Filters and Press Publishers’ Copyright”; and “Three Takeaways From the Proposed EU Copyright Directive”). Following a Franco‑German compromise on exceptions to an online service’s liability, the latest draft Directive is partly successful in meeting former criticism regarding unclear terms and questions of practical feasibility.
Below, we have summarized the main provisions of the current draft of Articles 11 and 13.
Article 13 – “Online Service Liability” for copyright infringing content
Article 13 subjects online content sharing services to a direct liability for copyright infringing user-generated and user-uploaded content (UGC). Changes to the last draft proposal include clarifications to the scope of the Directive’s applicability and a more balanced liability regime.
“Providers of an information society service whose main or one of the main purposes is to store and give the public access to a large amount of copyright protected works or other protected subject matter uploaded by its users which it organizes and promotes for profit‑making purposes.”
Notably, the recitals clarify that Article 13 is only targeted at online services which play an “important role” on the online content market by competing with services such as audio and video streaming services for the same audience. This will exclude enterprises that play a minor role or do not focus on the distribution of copyright protected content. The prerequisite of “large amounts” of copyright protected works shall be assessed on basis of the service’s audience and the number of files uploaded.
Article 11 – Copyright for Press Publishers
Article 11 introduces an ancillary copyright of publishers of press publications concerning the reproduction and making available of press articles or excerpts by information society service providers. The recitals explicitly mention the reuse of press publications by “news aggregators” and “media monitoring services” as the reason for the introduction of Article 11.
The draft Directive received the blessing of the EU Council’s committee on February 20, 2019 and the approval of the legal committee of the EU Parliament (JURI) on February 26, 2019. Though the Netherlands, Luxembourg, Poland, Italy, and Finland still oppose the text, France and Germany have joined forces and are pushing strongly for the draft Directive to be executed. While the approval of the members of the EU Council is considered a mere formality, an approval by the member of the EU Parliament is not unlikely, but a final rejection remains within the realms of possibility.
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