EU negotiators agree final text of Copyright Directive

Following an intense debate and lobbying by a range of stakeholders (as discussed in our recent bulletin), a final text of the controversial proposed Copyright Directive has now been agreed between representatives of the EU institutions. The next stage is for the Directive to be approved by the European Council and European Parliament in the coming weeks, with opponents such as Julia Reda, MEP, urging further representations against the proposals to MEPs.

The final text has not been published officially but both the Commission and Parliament have issued press releases, with Andrus Ansip, Vice-President of the Digital Single Market, saying “to finally have modern copyright rules for the whole of the EU is a major achievement that was long overdue.  The negotiations were difficult, but … we have a fair and balanced result that is fit for a digital Europe“.

In summary, the unofficial text of the two most controversial provisions, Article 11 and Article 13 (made available by Ms Reda on her website), provides as follows:

Article 11 – Press Publishers’ Right

  • The right will relate to the online use of press publications (only covering journalistic publications) by information society service providers.  It will not apply to the following:
    • private or non-commercial uses of such publications by individual users
    • acts of hyperlinking
    • uses of individual words or very short extracts of a press publication“. No doubt, there is likely to be scope for significant argument over what is a ‘very short extract’.  A recital to the Directive states that “it is important that the exclusion of very short extracts should be interpreted in a way so as not to affect the effectiveness of the rights provided for in this Directive.”
  • Further, exceptions such as criticism or review will be applicable.
  • The right will apply where the press publisher is established in a Member State and has its registered office, central administration or principal place of business in the EU.
  • The right will last for two years after publication (the two years will be calculated from the first day of January of the year following the date of publication, so some rights may last for up to three years).
  • Member States shall provide that authors of the works incorporated in the press publication receive an appropriate share of the revenues received by press publishers

Article 13 Use of content by ‘online content sharing service providers’

  • An online content sharing service provider (OCSSP) will cover a site (like YouTube) where its main (or one of its main) purposes is to store and give the public access to a large amount of copyright protected work uploaded by its users, which it organises and promotes for profit.
  • An OCSSP would not include not-for profit online encyclopedias (such as Wikipedia), open source software developing and sharing platforms (such as GitHub), online market places, and B2B cloud services and cloud services which allow users to upload content for their own use.
  • OCSSPs will need to conclude licensing agreements with the rightholder (which will also cover acts carried out by users of the services, provided this is non-commercial), with the recitals stressing the importance of fostering the “development of the licensing market between rightholders and OCSSPs“.
  • If no licensing agreement is concluded, a liability regime will apply which will make the OCSSP liable for unauthorised acts of infringement unless it can demonstrate that it has:
    • Made best efforts to obtain an authorisation;
    • Made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works (where rightholders have provided them with relevant and necessary information); and
    • Acted expeditiously, upon being put on notice, to remove/disable access to works, and made best efforts to prevent their future uploads (‘notice and staydown’).  In assessing this liability regime, much will clearly depend on what is required by ‘best efforts’.
  • ‘Start-up’ OCSSPs will only be required to make best efforts to obtain an authorisation and to effect a notice and takedown (not staydown) regime. This more limited liability regime will apply to new and smaller entrants, i.e. where their service has been available in the EU for less than three years, their annual turnover is below EUR 10 million and the average number of monthly unique visitors is less than 5 million.
  • The cooperation between the OCSSP and the rightholders must not lead to non-infringing works not being available.  Further, Member States must provide for mandatory defences relating to quotation, criticism and review, and for parody uses, with the aim of striking a fair balance between fundamental rights such as freedom of expression and the right to property in a copyright work.

The draft Directive also contains provisions on text and data mining, authors’ rights and access to cultural heritage.

Clearly, the proposals in the proposed Directive will impact significantly on content owners across a range of industries as well as platforms, authors and users, all of whom will be watching closely for further developments.