European Union: EU DSM Copyright Directive: Overview

Last Updated: 30 April 2019
Article by Giangiacomo Olivi and Saverio Cavalcanti

Intro

On March 26, 2019, the EU Parliament eventually adopted the final text of the EU Directive on Copyright in the Digital Single Market ("EU Copyright Directive"), based on the EU Commission proposal no. 2016/0280.

The EU Copyright Directive gave rise to a huge debate among EU institutions and the relevant stakeholders in the last three years, with particular reference to its provisions concerning so-called "link-tax" and "web-filtering" for content-sharing platforms. Some of the stakeholders even argued that freedom of expression on the Internet would be threatened by the enactment of the Copyright Directive. The EU Copyright Directive must be implemented by member states within 24 months of its forthcoming publication in the Official Journal of the European Union.

The purpose of this post is to provide an overview of the most interesting¬—and debated— provisions of the EU Copyright Directive.

"Link-tax" (Art. 15)

Such provision requires member states to provide:

a) publishers of press publications established within EU, with the right to prior authorize the online use of their press publications by online operators (information society service providers); and

b) conversely, publishers of press publications and authors of works incorporated in the press publication, with the right to receive an appropriate share of the revenues that press publishers receive for the use of their press publications by online operators.

It is worth noting that the above obligations do not apply to

(a) private / non-commercial uses of press publications by individual users;
(b) hyperlinking;
(c) individual words / very short extracts of the press publication.

Further, the provision specifies that, should a work be incorporated in a publication based on a non-exclusive license, the publishers' right to prior authorization shall not be exercised in a way that prohibits other authorized users from using the work.

The rights granted to publishers of press publications expire within two years from the publication (bearing in mind that such two-year term starts from January 1 of the year following the publication).

This finally approved version of "link-tax" appears to widen the scope of the exceptions to the general prior authorization mechanism: Indeed, link-tax is not applicable for hyperlinking and "very short extracts" (so called "snippets"). That said, the expression "very short extracts" could give rise to different interpretations across EU member states: In this respect, the adoption of guidelines/clarifications from EU institutions would contribute to clarify the scope of this exception.

It is also worth noting that member states retain a broad discretionary power for determining the "adequacy" of the share of revenues to be assigned to authors. This may lead to different solutions across member states (having adopted different approaches on the "fair value / compensation" mechanisms).

Use of protected content by online content-sharing service providers (Art. 17)

Pursuant to Article 17 of the EU Copyright Directive, online content-sharing service providers (e.g. YouTube, Twitter and Facebook) are considered to carry out an act of communication to the public anytime copyrighted content is uploaded on their platform by users. Therefore, such providers are required to obtain authorization from the rightholders—for instance, by concluding a licensing agreement—in order to make available the relevant works through their platforms.

The final version of the EU Copyright Directive does not contain any specific obligations against the above providers concerning the adoption of "web-filtering" measures (as in the first draft of EU Commission proposal). For more details on Article 17 of the EU Copyright Directive, read our post on this topic.

Text and data mining (Artt. 3 and 4)

The EU Copyright Directive provides for several exceptions to the general need for rightholders' prior authorization, should the activity consist of "text and data mining", i.e. automated analytical techniques aimed at analyzing text and data in digital form, in order to generate patterns, trends, correlations, etc.

Any text and data mining activity carried out on lawfully accessible works shall be provided with an exception, to be further defined by member states through local laws. No specific retention period is set forth, so that reproductions and extractions may be retained for as long as necessary for the purposes of text and data mining.

The above exception applies only to the extent rightholders have not expressly reserved such activity "in an appropriate manner, such as machine readable means in the case of content made publicly available online."

Fair compensation and the right of revocation (Art. 18)

Article 18 affirms a general principle according to which authors and performers, within the execution of a contract for the exploitation of the rights on their works, must receive adequate and proportionate remuneration. Additionally, Recital 24 provides for a remuneration mechanism that calculates compensation on a flat-rate basis in the case of the use of a work for educational purposes. Lastly, it should be noted that, pursuant to Article 22 - "Right of revocation", authors/performers may revoke completely or in part the license or the transfer of rights on a certain work, should that work not be exploited for a certain period.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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