EU Council Approves EU Copyright Directive

The long-awaited and fiercely debated Directive on Copyright in the Digital Single Market was finally adopted by the European Parliament on March 26, 2019 and approved by the EU Council on April 15, 2019.

It is yet to be published in the Official Journal of the EU. It will enter into force on the 20th day following its publication, after which EU member states will have two years to pass appropriate legislation to meet the Directive’s requirements.

While the new EU Copyright Directive will not introduce new rights for copyright holders, it aims to ensure the digital world abides by certain rules while also striking a fair balance between the right holders and the freedom of expression.

During more than two years of debates, various amendments of the Copyright Directive’s text centered around the following main topics: (a) press publishers’ rights, (b) online content-sharing service providers’ obligations, (c) cross-border use of educational materials, and (d) text and data mining.

(a) Press Publishers’ Rights (Article 15, former Article 11)

It is now explicitly stated that the online use of EU press publishers’ content by information service providers (such as news aggregator websites or search engines) represents an act of making copyright-protected works available to the public and that the information service providers must therefore compensate press publishers for such use, who in turn have to ensure the authors of the journalistic works themselves are fairly compensated for their work.

Individual users who use such content for private or non-commercial purposes are not required to pay compensation. Hyperlinking and the use of single words or very short extracts are excluded from the scope of Article 15.

(b) Online Content-Sharing Service Providers’ Obligations (Article 17, former Article 13)

The Copyright Directive states that online content-sharing service providers (OCSSPs, such as social media or music- or movie-sharing platforms) make protected works available to the public, which requires the right holders’ authorization, as set out in the applicable Article 3 of the Directive 2001/29/EC on copyright and related rights in the information society.

OCSSPs are defined as information society service providers whose main purpose is to store and provide public access to a significant amount of copyright-protected works or other protected subject matter uploaded by its users, organized and promoted for profit-making purposes.

The new Copyright Directive prevents OCSSPs from invoking the safe harbor created by the Electronic Commerce Directive 2000/31/EC, under which providers that act in a passive way and are not aware of the illegal content published by their users are excluded from liability.

If OCSSPs do not obtain right holders’ authorization, they can avoid liability if they show that they have expeditiously reacted to takedown notices and have made their best efforts to (a) obtain authorization from right holders, (b) prevent uploads of unauthorized content and (c) prevent future unauthorized uploads.

Not-for-profit online encyclopedias, educational and scientific repositories, and open-source software-developing and sharing platforms are excluded from the scope of the new Copyright Directive.

OCSSPs that have been active for less than three years, have an annual turnover below EUR 10 million (USD 11.25 million), and less than 5 million monthly unique visitors are subject to less demanding obligations.

(c) Use of Copyright-Protected Material in Cross-Border and Distance Learning

The use of copyright-protected material by educational institutions involved in cross-border and distance learning is permitted if the purpose and character of the use involves only the students and the teaching staff of the educational institution in question and if the source, including the author’s name, is specified. This exception can be adjusted in case other relevant licenses are easily available in the market.

Whereas prior authorization from right holders is not required, the new Copyright Directive provides that EU Member States are free to impose fair compensation obligations on the educational institution, to the benefit of the right holders.

(d) Text and Data Mining

The Directive recognizes that text and data mining technologies enable the processing of large amounts of information for gaining new knowledge and discovering new trends, but specific exceptions and limitations regarding text and data mining are to be implemented by all EU Member States.

The use of copyright-protected works (text, images, sound) is permitted if text and data mining activities are performed for the purposes of scientific research by research institutions such as universities, educational institutions and hospitals, provided that they act on a not-for-profit basis and are not controlled by private companies. While they are not required to seek prior authorization, they must meet certain security requirements.

By: Laura Leonte

For more information, please contact Laura Leonte at our Romania office.