A country by country analysis of EU copyright reform implementation

Out-Law Analysis | 04 Mar 2021 | 11:37 am | 2 min. read

EU countries have until June to implement controversial new copyright laws, but some countries have not even started that process. Though Covid-19 has been an impediment, some countries have had reservations about the reforms.

The Digital Single Market Copyright Directive (118-page / 715KB PDF) was approved in 2019 and EU countries must implement it in their national law by 21 June.

One of the most controversial elements of Directive has been a change to the liability of online platforms. Article 17 of the Directive says that platforms which allow users to upload digital content will be more liable than before if that material infringes copyright.

Previously, platforms were not said to be making a "communication to the public" when they allowed users to upload content. But that will change, and the operating of these platforms will be an act of communication by means of statutory definition.

The move is intended to ensure that content creators are more likely to get paid when their work is accessed, but industry and EU countries have expressed concerns about its operation. They fear it could result in 'over-blocking', where legitimate content is blocked by automated upload filtering systems.

 

Copyright Directive flow chart

Graphic: How platforms can decide whether content breaches the Directive

 

Freedom of speech is seen as being at risk, as are intellectual discourse and the mutual exchange of ideas through quotation, criticism, review, caricature, parody or pastiche.

This has caused Article 17 to be very complex and its implementation in EU member states has been patchy.

To help navigate the competing interests around Article 17 European Commission organised a stakeholder dialogue whose six meetings in 2019 and 2020 resulted in a consultation paper which aims to provide guidance on how to handle Article 17.

The paper sought further engagement from stakeholders, and comments were received from a group of member states and from several rights holders. No consolidated version of the consultation paper has yet been published.

In the consultation paper the Commission runs through the various sub-sections of Article 17 of the Directive, giving guidance on the 'best effort' clause in Article 17(4) lit. b) and the measures that ought to be taken in order to prevent the blocking of works that do not infringe copyright. This might be because the use of the work is permissible under one of the limitations and exceptions. The paper also discussed complaint and redress mechanisms in some depth.

A central question in the overall debate was the structural tension that exists between Article 17(4) lit. b) and Article 17(7) of the Directive, between the obligation to apply best efforts to prevent availability of infringing content and the safeguarding of the ability to make available legal content. The stakeholders discussed whether disputed content should be blocked on preliminary basis while its legality is assessed. The Commission shows a tendency towards giving room and priority to Article 17(7) of the Directive and thus suggests to block only “likely infringing uploads, whereas content, which is likely to be legitimate, should not be subjected to automated blocking and should be available.” France was amongst those supporting temporary blockage.

 

Copyright Directive cog

Graphic: Some of the issues platforms have to balance when making decisions

 

It remains to be seen whether the Commission will update its position. The implementation process is soon to be completed with the domestic laws being due to be enacted by 7 June. Of course, not all member states will meet this deadline. Still, the stakeholder dialogue provided a pan-European forum for continued discussion while the member states are drafting new sections to be inserted into their existing copyright laws.

Countries are navigating the issue at different speeds so we have analysed below the progress each country has made.

  • France

    France has been one of the principal supporters of the DSM Copyright Directive throughout the legislative process. French cultural lobbies and rightsholders have a strong influence in French politics and have strongly supported Articles 17, as well as Article 15, which relates to press editors' new publication rights.

    This political involvement explains why Article 15 was so swiftly implemented, in a dedicated law published on the 24 July 2019, just three months after the Directive had been passed.

    This quick implementation made France an experimental playground for Article 15’s enforcement, sparking negotiations between press editors and Google, due to its news aggregator Google News.

    The Directive’s other provisions, however, have yet to be transposed. The French legislature had at first planned to implement some of it, and in particular the controversial Article 17, through a government bill on 'audiovisual communication and cultural sovereignty in the digital age'. This bill was to be passed through an accelerated procedure.

    This accelerated procedure means that the bill is first reviewed and amended by a joint committee, composed with members of both chambers of the parliament. Once this committee has reached an agreement on a text, that text is discussed only once by each of the chambers, considerably speeding up the process. This procedure is sometimes used when the government or the majority wants to avoid controversial debates.

    Under this first process, the French parliament seems to have closely followed the Directive’s text in its implementation directly transposing some of the Directive’s text. This implementation was in the interests of rightsholders.

    Unfortunately, due to Covid-19 and with the first lockdown, this parliamentary proces stopped after 12 March 2020.

    The implementation process restarted last November, with the parliament passing a 'law on various provisions adapting to European Union law in economic and financial matters'. It gives power to the French government to implement the Directive by way of ordinance.

    The law gives the government six months to transpose Article 17, and 12 months for the rest of the Directive's provisions, without any control of the legislative power.

    This delegation of authority from the legislator to the government is not that common. However, France has little latitude with the approaching implementation deadline in June.

    The European Commission has been working on guidelines for to the application of Article 17, in a bid to encourage a harmonised implementation by member states. The French government could, given their current deadline, wait for such guidelines. But their recent disagreements with the Commission indicate that they won't.

    A recent stakeholder consultation has led France to criticise the guidelines project. A memo addressed to the Commission states that the project distorts Article 17 by introducing new concepts.

    Such disagreement could generate diverging implementations of the Directive among member states.

    Annabelle Richard and Pierre-Yves Thomé

  • Germany

    The German government is on its third draft of a bill to transpose the DSM Copyright Directive into German law. The latest draft is supposed to be the basis for the debate in both chambers of German parliament, Bundestag and Bundesrat. Remarkably, Article 17 of the Directive is not envisaged to become an integral part of the German Copyright Act. Rather, Germany aims for a stand-alone piece of legislation made up of more than 20 articles dealing with the use of protected content by online content-sharing service providers. The explanation for this is quite interesting: A coherent integration into the dogmatic concept of the Copyright Act is deemed “problematic and not very user-friendly”. Well, the subsequent application and interpretation of the new law needs, without any doubt, to be coherent.

    Conceptually, the German legislature follows the path of the introduction of a new exploitation right in favour of the author. The starting point is the service provider’s obligation to make sure there is permission for the content to appear. In essence, we see a duty of care imposed on the content-sharing service provider: all reasonable measures need to be taken to try and obtain a license for the content. Of course, the principle of proportionality is built into this concept. The right to communicate the respective works to the public may either be obtained from the author or from collecting societies.

    If no license can be obtained, a notice-and-take-down and stay-down regime comes into play. However, the concept is refined by certain pre-emptive duties to block the upload of infringing material. These extensive duties to check and block, however, only apply if the rights holder provides adequate information enabling the service provider to detect and block the infringing content.

    The German government seems to have given plenty of thought to how the phenomenon of over-blocking can be contained. The answer proposed rests on legal presumptions when the featuring of content is to be deemed legally permissible. Small-scale usage of protected works falls underneath a de minimis clause. Less than 15 seconds of video footage or sound, less than 160 letters of a text or images up to 125KB are assumed to be below the threshold. These figures might be amended in the course of the legislative process, but the route to take seems fairly clear. Limitations to copyright such as citations, parodies, pastiches or caricatures also free the service provider from the obligation to obtain a license. Moreover, content being flagged as legal content also fall outside the scope of the regulation.

    According to the current draft, the service provider must pay the author an appropriate remuneration for any communication to the public of presumably permitted uses. This obligation goes beyond what the Directive asks for. Further, the German draft contains provisions on in-court and out-of-court proceedings, complaint procedures, measures against abuse, a right to information, a domestic agent for service and rules on related rights.

    The bill is expected to be discussed in parliament in the course of March followed by parliamentary committee session and any resulting amendments. It is highly likely that Germany will meet the implementation deadline in coming June.

    Nils Rauer and Alexander Bibi

  • Ireland

    The Department of Business, Enterprise and Innovation (DBEI) is due to publish draft legislation implementing the DSM Copyright Directive shortly, having held four consultations in 2019.

    Some parts of the Irish Copyright and Other Intellectual Property Law Provisions Act, enacted in June 2019, already reflect aspects of the DSM Copyright Directive, but it does not make specific reference to the Directive itself and further implementation is, therefore, required.

    It seems likely that the DSM Copyright Directive will be introduced initially through secondary legislation, after which the DBEI will hear stakeholders' suggestions for primary legislation, which is highly likely to be required later in the year allowing a period for stakeholders to understand the issues arising. The DBEI said that it intends to track the drafting of the Directive carefully in terms of the secondary legislation and that primary legislation will leave the door open for further reform and further implementation of the Directive, which is expected, given the complexity involved. The draft secondary legislation is believed to be at an advanced stage of development. While the DBEI has not issued any official guidance on the substance of what will be included in the draft legislation it appears that it intends to implement only the mandatory parts of the DSM Copyright Directive, including the contentious Article 17.

    The Covid-19 pandemic has reiterated the importance of an effective and swift implementation of the Directive into Irish law. Due to the ongoing restrictions, not only in Ireland but all over Europe, musicians and artists have been unable to perform in public, hold exhibitions or attend festivals causing a major financial blow to those individuals. On the other hand, online service providers have thrived on a significant increase in the use of artistic work in recent years. The pandemic has served to highlight this discrepancy, pointedly called the 'value gap', which the Directive seeks to address.

    Given the importance of the DSM Copyright Directive for for Ireland's position within the EU, particularly in the creative and technological sectors, the DBEI remains willing to take further informal submissions from affected stakeholders. Other member states such as Germany, France and the Netherlands have already pressed ahead with draft legislation, having provided extensive opportunities for stakeholders to deliver feedback and criticism. It is expected that the DBEI intends considering carefully how various elements of the Directive operate in practice in other European jurisdictions before committing itself further. Ireland is the main EMEA headquarters for many technology companies in Europe and while the government is fully committed to the intentions of the Directive it is conscious of the need to strike the right balance in doing so.

    Ann Henry

  • Poland

    Throughout the legislative process, the Polish government has consistently raised a number of objections towards the DSM Copyright Directive. Poland was one of the main opponents of the proposed text of the Directive, voting with five other member states against the bill’s adoption. The main argument raised by the Polish government was that Articles 15 and 17, which relate to the new press editor’s publication rights and the use of protected content by online content-sharing service providers will lead to a limitation of freedom of speech on the internet.

    Despite the subsequent adoption of the Directive, Poland has continued to maintain that some provisions of the Directive are incompatible with EU law and in 2019 brought an action to the Court of Justice of the European Union (CJEU) against the European Parliament and EU Council.

    Poland is seeking annulment of Article 17(4)(b) and Article 17(4)(c), the part that says: “and made best efforts to prevent their future uploads in accordance with point (b)”) of the Directive. If the CJEU finds the contested provisions cannot be removed from Article 17 without substantively changing the rules contained in the remaining provisions, Poland asserts that the CJEU should annul all of Article 17.

    The Polish government claims that the measures infringe the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the EU. Poland claims that the implementation of the contested provisions will result in platform operators introducing preventative control mechanisms and that these undermine the essence of the right to freedom of expression and information and do not comply with the requirement that limitations imposed on that right be proportional and necessary.

    The case has not yet been resolved, but a future CJEU judgment may lead to a change in the content of the Directive, which will require changes to the regulations already implemented by member states.

    The Polish government has not published any draft bill implementing the Directive and there is a significant risk that it will miss the implementation deadline. The Polish reservation towards the Directive has aroused suspicions of ministers intentionally dragging their heels, but government representatives responsible for preparation of the draft have said that work on the draft is in progress and we can soon expect publication.

    However, taking into account that apart from the results of public consultations, no official materials regarding the draft have been published, all ongoing discussions are theoretical and based on the text of the Directive itself. There is no doubt that the implementation of the Directive will require many changes to the current provisions of Polish copyright law. But thus far, due to the delay in work on the draft, the business and legal considerations have been focused on answering the question of what will be the position of copyright authors and users in Poland in the absence of any implementation of the Directive in June.

    Agnieszka Choromańska-Malicka of Pinsent Masons partner firm Kochański & Partners in Warsaw

  • Spain

    In Spain, the DSM Copyright Directive has yet to be transposed fully into law. The Ministry of Culture conducted a public consultation on the transposition into Spanish law in 2019.

    Contradictions between the Directive and the existing Intellectual Property Law (RLD 1/1996) have been pointed out.

    Article 15 gives publishers some rights to control how their content is used on online platforms. It allows them to individually negotiate the terms of the licenses granted to information society service providers for those uses.

    But the remunerated limitation of Article 32.2.I of RLD 1/1996 says that publishers must be paid for use of their work on platforms through a collective entity that manages copyright and related rights.

    This means that Spanish law's requirement for collective payment and Article 15's granting of the right to negotiate individually are in conflict. Spanish law prevents the publishers from individually negotiating the terms of the licenses with information society service providers as the publishers cannot waive the compensation that must be managed through a collective entity.

    By assigning rights to the publishers without any limitation, the Directive clearly aims to open the market for the aggregation of press content and enhance the free and individual negotiation between publishers and information society service providers.

    This contradiction must be taken into consideration by the Spanish legislature when transposing the Directive.

    The transposition may mean an extension of related rights in Book II of the RLD 1/1996. Article 129.2 grants protection to publishers of non-protected works, provided that their publications can be identified by their typographical composition, presentation or other editorial characteristics.

    Lidia Vidal Vallmaña

  • UK

    The UK played an active role in discussions about the DSM Copyright Directive in the European Parliament and European Council, but is no longer a member of the EU so is not bound by it.

    The UK has made it clear that it will not implement the Directive. In January 2020 then minister of intellectual property Chris Skidmore said that the UK “will not be required to implement the Directive, and the government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process.”

    While the UK will not be implementing the Directive, the UK government has committed to upholding existing provisions relating to intermediary liability, general monitoring and transparency. For example, the E-Commerce Regulations, which implemented the E-Commerce Directive, are largely set to remain in place.

    Under those regulations an internet society service (ISS) has a number of defences against liability for activity on its platform.

    The hosting defence means that it is not liable for information it is hosting if it does not have actual knowledge of it or if it removes the information promptly after being notified of it.

    The mere conduit defence means that it is not liable for information which is provided by a recipient of the ISS’s service and not the ISS itself and for which the ISS’s role has been automatic and passive.

    The caching defence means that it is not liable for cached information which is the subject of automatic, immediate and temporary storage for efficient onward transmission.

    Under the E-Commerce Directive member states are prohibited from requiring an ISS to generally monitor the information which passes through it or to actively seek facts relating to illegal activity. There has been no indication from the UK government that it intends to diverge from this.

    In continuing to apply the E-Commerce Regulations, the UK government has said that for “companies that host user-generated content on their online services, there will continue to be a ‘notice and take down’ regime where the platform must remove illegal content that they become aware of or risk incurring liability".

    The UK government has also said that it intends to introduce a new online safety regulatory framework. This will require companies to take action to keep their users safe from illegal content. Under the new framework companies which host user-generated content that can be accessed by users in the UK or facilitate interactions between UK users will have certain obligations. Companies falling under the framework will be required to take action against illegal content and activity, provide mechanisms for users to report harmful content or activity and address disinformation or misinformation.

    The new regulatory framework is intended to apply to search engines, social media services, video sharing platforms, online instant messaging services, online marketplaces, video games which allow interaction, cloud services and other peer to peer services. Companies are to be split into two categories depending on audience size and recommendations by Ofcom, with Category 1 companies having to comply with additional obligations, which include undertaking risk assessments and publishing transparency reports. The UK government plans to introduce legislation to the UK parliament later this year.

    Tom Nener and Aumair Qayum