On 26 March 2019, Members of the European Parliament adopted the new Copyright Directive in plenary by 348 votes in favour, 274 against and 36 abstentions. This vote marked the end of the legislative process for the European Parliament that began in 2016. The text adopted by the European Parliament needed to be formally endorsed by the Council of the European Union. Today the Council of the European Union gave its green light to the new Copyright Directive which should bring “concrete benefits to citizens, the creative sectors, the press, researchers, educators, and cultural heritage institutions“.
Once published on the Official Journal of the EU, Member States will have 24 months to transpose the new rules into their national legislation.
The directive aims to ensure that the longstanding rights and obligations of copyright law also apply to the internet. YouTube, Facebook and Google News are some of the internet household names that will be most directly affected by this legislation. The directive also strives to ensure that the internet remains a space for freedom of expression.
The directive aims to enhance rights holders’ chances, notably musicians, performers and script authors (creatives), as well as news publishers, to negotiate better remuneration deals for the use of their works when these feature on internet platforms. It does this by making internet platforms directly liable for content uploaded to their site and by automatically giving the right to news publishers to negotiate deals on behalf of its journalists for news stories used by news aggregators.
Numerous provisions are specifically designed to ensure the internet remains a space for freedom of expression. As sharing snippets of news articles is specifically excluded from the scope of the directive, it can continue exactly as before. However, the directive also contains provisions to avoid news aggregators abusing this. The “snippet” can therefore continue to appear in a Google News newsfeeds, for example, or when an article is shared on Facebook, provided it is “very short”.
Uploading protected works for quotation, criticism, review, caricature, parody or pastiche has been protected even more than it was before, ensuring that memes and Gifs will continue to be available and shareable on online platforms.
The text also specifies that uploading works to online encyclopedias in a non-commercial way, such as Wikipedia, or open source software platforms, such as GitHub, will automatically be excluded from the scope of this directive. Start-up platforms will be subject to lighter obligations than more established ones.
Authors and performers will be able to claim additional remuneration from the distributor exploiting their rights when the remuneration originally agreed is disproportionately low when compared to the benefits derived by the distributer.
The directive aims to make it easier for copyrighted material to be used freely through text and data mining, thereby removing a significant competitive disadvantage that European researchers currently face. It also stipulates that copyright restrictions will not apply to content used for teaching or illustration.
Finally, the directive also allows copyrighted material to be used free-of-charge to preserve cultural heritage. Out-of-commerce works can be used where no collective management organisation exists that can issue a license.
Currently, internet companies have little incentive to sign fair licensing agreements with rights holders, because they are not considered liable for the content that their users upload. They are only obliged to remove infringing content when a rights holder asks them to do so. However, this is cumbersome for rights holders and does not guarantee them a fair revenue. Making internet companies liable will enhance rights holders’ chances (notably musicians, performers and script authors, as well as news publishers and journalists) to secure fair licensing agreements, thereby obtaining fairer remuneration for the use of their works exploited digitally.