Christiane Stuetzle and Patricia C. Ernst
Copyright, Media + Entertainment | Europe, Technology, Media + Telecommunications | Europe, and Technology Transactions
The EU Member States' Approval
The Directive on Copyright in the Digital Single Market (“Directive”) was finally approved by all EU legislative bodies on April 15, 2019. Introducing “modernizing EU copyright rules for European culture to flourish and circulate” was a key initiative of the European Commission’s Digital Single Market (DSM), which, according to the Commission’s President Jean-Claude Juncker, has now been completed by the Directive as “the missing piece of the puzzle.” The Directive was approved just in time for the elections to the EU Parliament taking place in May 2019. Within a period of 24 months, the Member States are required to implement the Directive’s provisions into national law.
Various Member States have issued, along with their approval of the Directive, statements regarding their interpretation of the Directive and voicing quite different views about the upcoming implementation process (https://data.consilium.europa.eu/doc/document/ST-7986-2019-ADD-1-REV-2/en/pdf). While Germany strongly opposes the notion of upload filters, it appears that France is in favor of a copyright protection mechanism that includes upload filters. At the same time, it remains a pressing question whether currently available algorithm-based filters would even be able to sufficiently differentiate between infringing and non-infringing content.
These dissonant views, as well as the sometimes vague wording of the Directive, have raised concerns that Member States will implement the Directive in different ways, leading to a lack of harmonization across the EU. The Directive, however, expressly requests a harmonized implementation and anticipates stakeholder dialogues led by the EU Commission and the Member States.
The Dissonant Vote
What the Directive Will Change
The final, adopted version of the Directive (http://www.europarl.europa.eu/doceo/document/TA-8-2019-0231_EN.html) coincides with the trilogue compromise (see a detailed assessment of the main provisions in our Client Alert “The EU Copyright Directive hits the Homestretch”) and provides the following main changes. Due to mere editorial changes, its articles have been renumbered:
The Directive is expressly designed to provide a harmonized legal framework in order to prevent the fragmentation of the European market. Article 17(10) of the Directive anticipates that the Commission will conduct stakeholder dialogues with all interest groups, especially online service providers and rights holders, on best practices regarding the obligations under Article 17. Drawing on these dialogues, the EU Commission is required to issue guidelines on the application of “best efforts” requirements, as well as the cooperation with rights holders (i.e., the rights holders’ notification of protected works to online service providers and the negotiation of license agreements).
Outlook – Stakeholder Dialogues & Implementation Process
The stakeholder dialogues of the implementation process will represent an important period for stakeholders wanting to raise their voices as to (i) ensuring that the concrete implementation of the so-far vague wording of Article 17 of the Directive will reflect an appropriate solution and (ii) for those platforms with uncertain qualification as an online content-sharing service provider as to ensuring that they will be included in the list of platforms to which Article 17 does not apply.
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