The « Copyright in the Digital Single Market » Directive: transposition is on the way!

Protecting authors’ rights is a necessity in the digital age, as information flows more and more easily. That is why the European Commission reported in September 2017 that it was necessary to tackle illegal online content, while the French legislature has already transposed several European directives and has modified its literary and artistic property law.

In this respect, a great deal has been written by the Directive 2019/790 (EU), adopted on 26 March 2019 by the European Parliament. Among its 30 articles, we count in particular the establishment of a related right for press publishers (Article 15) and an obligation for platforms to control hosted content  (Article 17). These provisions have been fiercely debated, and have led to multiple lobbying campaigns by authors and performers, newspaper publishers, and web giants (Google, Facebook and YouTube). In the present article, we will examine the changes made by the Directive.

New exceptions to copyright

There are currently many exceptions to copyright. In that respect, the Directive introduces three new exceptions to author rights and related rights in the digital environment. These exceptions and limitations are:

– Text and data mining for the purpose of scientific research when carried out by research organisations and cultural heritage institutions. However, rightholders are allowed to put in place technical measures aimed at ensuring the security and integrity of the networks and databases where their works are hosted. They may also expressly reserve their rights “in an appropriate manner”, for instance by machine-readable means, such as a digital watermark (Articles 3 and 4);

– The use of works in digital learning activities including distance learning. States may, however, provide a fair compensation for rightholders (Article 5);

– The copying by cultural institutions, for conservation purposes, of works which are part of their permanent collections (Article 6).

French law already provides similar exceptions in the article L. 122-53°) e) 8°) and 10°) of the French Intellectual Property Code, but this is not necessarily the case for all member States.

Under both French law and the Directive, these exceptions must be strictly interpreted and require that the work has been lawfully published.. All the conditions required by law must be met in order to benefit from these exceptions without having to obtain the author’s prior consent..

Furthermore, these new dispositions do not modify existing limitations and exceptions, such as parody or short quotation, which are retained (Article 17 (7) of the Directive). However, Member States will now have to specify that reproductions of visual works of art in the public domain cannot be protected by copyright unless the reproduction itself is original enough to be protected (Article 14). In France, this clarification is a mere application of copyright: a work in the public domain is no longer protected by author rights. Consequently, it can be freely reproduced without authorization. By contrast, if the production  is original, it becomes a work on its own right and, as such, can be protected.

Licenses: out-of-commerce works, audiovisual video-on-demand works and collective management

The article 8 of the Directive authorizes collective management organisations to conclude non-exclusive licenses  for non-commercial purposes with cultural heritage institutions for exploiting (reproducing, distributing, etc.) out-of-commerce work which are in their permanent collections.

According to Article 8 (5) of the Directive, a work is out-of-commerce: “(…) when it can be presumed in good faith that the whole work or other subject matter is not available to the public through customary channels of commerce, after a reasonable effort has been made to determine whether it is available to the public.”

Such licenses do not require prior mandate from the rightholder, but the collective management organization must be sufficiently representative of rightholders. The owner may, however, exclude at any time his works from this licensing mechanism, whether this exclusion is general or specific. In addition, the moral right to authorship of the work must be respected by indicating the author’s name, “unless this turns out to be impossible” (Article 8(2)).

Therefore, there is a switch from a prior authorization regime to an implied consent regime, and this  will require greater vigilance on the part of authors and rightholders.

In France, article L. 134-4 of the French Intellectual Property Code already gives authors of out-of-commerce books the right to oppose to their exploitation.

Article 12 of the Directive provides that States may authorize collective management organizations to extend collective licenses to rightholders who have not authorized the organization to represent them.

Here again, the organization must be sufficiently representative of rightholders, and they in turn  may exclude their works at any time from this licensing mechanism.

Furthermore, article 13 of the Directive provides for a negotiation mechanism in which “an impartial body or of mediators” will be in charge, in order to assist in the conclusion of licensing agreements “making available audiovisual works on video-on-demand services”.

The related right of press publishers

Article 15 of the Directive creates a related right for newspaper publishers established in a Member State. They can now be remunerated for use of their content by information service providers, in particular news aggregators. This right is subject to strict conditions of application and does not apply to :

– Private and non-commercial uses;

– Hyperlinks;

– Use of isolated words or very short extracts of a press publication;

Works published for the first time before the Directive’s entry into force.

Moreover, this right is only granted for two years from January 1st of the year following the date on which that press publication is published.

This related right is a right of its own, and thus publishers no longer have to demonstrate they indeed own the economic rights transferred to them by the author of the work.

Part of the remuneration paid by service providers to newspaper publishers must be paid to the authors. However, the Directive does not specify how this payment must be carried out. In addition, authors can exploit their works independently of press publication.

Online content-sharing service are fully responsible (Article 17)

In France, platform operators enjoy the protective status of article 6-I-2 of the law “for confidence in the digital economy” n° 2004-575 of 21 June 2004. They are not

liable if they “promptly” remove the content at stake.

Platforms will now be liable if they communicate to the public without authorization works protected by copyright. However, they will be exempt from liability if they have:

“Made best efforts to obtain an authorization” from rightholders;

– “Made best efforts” to ensure the unavailability of the work and

– Acted “ expeditiously” to disable access to the work or remove it from their websites after receiving a « sufficiently substantiated notice” of the  rightholders.

Compliance with these requirements will be examined with regard to the type, audience, and size of the service, as well as the type of works downloaded. Article 17 (8) specifies that platforms are not subject to any general monitoring obligation, but its paragraph 4 (b) requires that they provide their “best efforts”, “in accordance with high industry standards of professional diligence”, to ensure the unavailability of protected works, which seems to be a sneaky way to require automatic content filtering.

Platforms that have been in service for less than three years, and which have an annual turnover of less than €10 million, will benefit from a less restrictive liability regime, as they will only have to make their best efforts to obtain an authorization and will have to act promptly upon receipt of a “sufficiently substantiated notice” from a right holder.

Furthermore, all platforms will be required to put in place an “effective and expeditious complaint and redress mechanism” so that users can challenge blocking or removal of a work posted online. States must also provide for alternative dispute resolution procedures.

Finally, it should be noted that authors and performers will now have to be remunerated in an “appropriate and proportionate” manner (Article 18). They must receive, at least once a year, information on the exploitation of their works (transparency obligation provided for in article 19). Contracts which are already concluded should be adapted to provide for an “additional, appropriate and fair remuneration” (article 20). Article 22 of the Directive also gives authors a right to revoke a license or a transfer of rights. These measures already exist in French law, but the Directive will harmonize European law.

The next step is the transposition of these provisions, which must be done by 21 June 2021 at the latest. France, which supports this text, should proceed with this transposition next summer. A proposal for a law on related rights with regard to press articles is already under consideration.

These developments are to be monitored…