Editor’s Note, March 26, 2019: The European Parliament has voted to approve a substantial copyright reform package, progressing towards the goal of a “Digital Single Market” for Europe. Protest rallies against the bill in various European cities peaked over the weekend and some major groups in individual countries came out in opposition, but in the end the proponents of the package prevailed by a vote of 348-274. Two main sources of friction, however — what were previously enumerated as Article 11 (publishers right) and Article 13 (content filters for social media platforms) — avoided deletion from the package at the last minute by extremely narrow margins of 317-312 on each article.
Editor’s Note, March 4, 2019: On February 13th, the Council of the EU, the European Commission and a delegation from the European Parliament (the ‘trialogue’ partners) succeeded in agreeing on a final text of a proposed new Copyright Directive.
Subsequently, the EU Parliament’s JURI (Legal Affairs) Committee voted on February 26th to recommend the final draft to the full Parliament for approval. A final vote in Parliament is now scheduled for late March . Given that calendar, the process may not be over yet. Protest rallies against the bill in multiple European cities are planned for March 23.
The purpose of the proposed Directive is to harmonize copyright law in the digital age —across the European Union. The Directive is generally seen as pro-copyright legislation. Although the language of the legislation is dry and technical (and very long), there are 4 provisions which might be important to frequent readers of this blog: Articles 3, 11, 12, and 13.
Andrus Ansip, who has been leading this charge (and is the EU Commissioner currently responsible for bringing the Digital Single Market, which involves many elements beyond copyright, through to completion), referred to the trialogue agreement as “a major achievement for Europe,” as well as one that brings “real benefits for everyone: guaranteed rights for users, fair remuneration for creators, clarity of rules for platforms.”
Article 3 contains an exception for non-commercial text mining by research organizations. This should help TDM projects by reducing the uncertainty around their use of broad corpora (corpuses? Never mind) of works under copyright, such as recent scientific articles.
The subjects generating the most commentary and controversy are Articles 11 and 13. These two provisions, one creating a “neighboring right” to allow news publishers to be compensated for use of their articles by online platforms, and one holding platforms more responsible for ensuring that the content on which they profit is not infringing the rights of the content’s creators and distributors, have led to a major counter-offensive in social media and elsewhere by technology platforms (leading to the planned rallies mentioned above).
Article 12 allows (but does not require) Member States to draft national legislation that would include publishers as stakeholders entitled to remuneration —i.e., a share of royalties — under collective licensing regimes.
Other clauses of interest to both authors and publishers, as well as to users of copyrighted works, relate to the use of copyrighted materials in digital form for illustrative purposes in educational settings, and the use of out-of-commerce works by cultural heritage organizations.
European Parliamentary elections are due in May 2019 and so final enactment of the new Copyright Directive by the Parliament would have to occur well before then if it is to not be indefinitely postponed. If the Directive is enacted in 2019, then each of the 28 Member States (technically, still including the UK) would then be required to “transpose” it into national law, and would probably have two years to do so – but, given this process of national implementations, some likelihood of inconsistency arising between the laws of various EU members will continue to be a possibility.