Ron Moscona: Long way ahead for Copyright Directive

Ron Moscona

These issues will spark much debate in the months to come particularly surrounding the likely impact of these reforms on the way content is shared, used, disseminated and published on the internet.

The adoption of the new text by the EU Parliament is a significant step in the legislation process although there is yet a long way forward. Firstly, the draft legislation itself will now have to be considered by the member states of the European Union. This may result in many further changes to the text, possibly significant ones, before the legislation is passed into law. Then, once the directive becomes law, it would have to be implemented through domestic legislation in each member states of the EU. Only then will the full practical impact of some of the provisions will become apparent.

The proposed legislation covers several different issues. On the one hand, it introduces modifications to the list of exceptions to copyright protection particularly in the areas of education and research. Data mining, premised on access to large amounts of copyright materials, is a specific activity that the legislation seeks to enable by creating special new exceptions to copyright protection.

But the main emphasis in the draft directive is on reinforcing copyright and helping rightholders protect their works against unauthorised exploitation, particularly in the digital space. Some argue (particularly in the context of Article 13 that deals with the prevention of infringements by content sharing platforms) that this will translate into forcing technology platforms to apply filters and censorship in order to proactively prevent infringing content being shared by their users, which internet activists argue would stifle free speech.

However, the legislation is much more nuanced than that and clearly seeks to put in place safeguards against over-protection. Further, the text adopted by the EU Parliament sets out high level ideas that would have to be broken down into practical legal rules. This will only happen when the directive is implemented by EU member states. It is very difficult at this stage to predict how some of the principles laid out in the draft directive will be implemented and what impact they will end up having on the way content is used on the internet.

The draft directive also seeks to create new rightholders. Publishers will have their own independent rights equivalent to those of authors, for a limited protection period of 5 years. This is intended to ensure that publishers can claim a fair share of the benefit from the dissemination of their publications by third parties through the internet. The revised text of the directive emphasises in this context that copyright protection will not prevent the free use of hyperlinks that lead to protected content published online. However, the new rights of publishers may force search engines and other digital players to pay royalties, for example, when published content comes up in search results.

At the same time, the draft legislation introduces radical ideas for the protection of authors who grant exclusive licences to publishers. According to the new text, authors who license their works to publishers will have statutory rights to receive annual detailed reports regarding the exploitation of their works and will have the right the right to revoke exclusive licences granted to publishers if the work is not properly exploited. These ideas were only recently adopted into law in Germany. The proposal was added only now to the draft directive by the EU Parliament. It was not included in the original draft directive published in 2016 by the EU Commission. Query whether other EU member states will agree to adopt a similar protective approach across the EU. The publishing industry which is set to enjoy the creation of a special copyright protection for publishers will surely bulk at the idea of facing new onerous reporting requirements and potential disruption to their portfolios of works with many of their licences set to become revocable overnight.

Another surprise addition in the text of the directive is the novel idea that organisers of sports events will enjoy copyright protection for those events. Sports events do not generally attract copyright protection, although organisers of those events generate significant revenues from selling broadcasting rights (which they can do largely by controlling access to the events). It is not entirely clear why the EU Parliament decided that the sports industry requires additional protection by creating a special type of copyright for sporting events. The draft legislation, in any event, offers no clue as to what that right might consist of.

The new draft Copyright in the Digital Market directive opens up many questions and may indicate significant reforms to come. The legislation, however, is still a long way from being the final product.

Ron Moscona is a partner at Dorsey & Whitney in its London office