Reforming copyright for the digital single market

2-3/2018 22.8.2018

In the current copyright reform of the EU, the proposed directive on copyright in the digital single market would bring far-reaching consequences.

In the EU, copyright is undergoing the biggest reform since the adoption of the Infosoc-directive in 2001. The most far-reaching and controversial changes to the current copyright regime could follow from the proposed directive on copyright in the digital single market (the DSM directive). It may bring fundamental changes to the basic copyright doctrines as well as the liability regime applicable to service providers.

The DSM directive proposal consists of a mish-mash of provisions. It introduces certain mandatory exceptions into the EU copyright acquis, including one on text and data mining for scientific research. It also proposes an EU-wide ECL (Extended Collective Licensing) system for clearing rights to out-of-commerce works to the benefit of cultural heritage institutions.

Furthermore, it introduces several measures to address the so called “value-gap” meaning that rightholders do not receive sufficient remuneration for the exploitation of their works, regarding online uses in particular. The value-gap provisions range from the introduction of rules on transparency and the possibility for authors and performers to receive additional remuneration for the commercial exploitation of their works, to a new related right for press-publishers and to rules on the responsibility for social media and other information society service providers for the content uploaded by their users.

The DSM directive touches upon fundamental issues such as the object of protection under copyright, in particular whether copyright may extend to information. It also deals with the understanding of value-creation and whether copyright should be confined to “any” use of a work and even provide a right to additional remuneration not only from revenues resulting from the commercial exploitation of the work, but also based on (any?) “benefit” resulting from the use of the work.

The new neighbouring right of press publishers, the confines of which have not been specified in the proposal, in combination with the implication that data mining requires permission from rightholders except when carried out for the purpose of scientific research, provides for a broad scope of protection. In practice, the extraction of information from a work, including data mining, could be considered an exploitation of a work that requires the permission of the rightholder. Also, collecting and analysing data regarding use of content, or arranging or optimising content could be copyright-relevant. These changes to copyright law could have serious implications for a variety of services, including search engines.

Article 13, sometimes labelled as the “YouTube provision”, also seems to be going into a direction clarifying that information society service providers have the full responsibility for any copyright infringing content on their servers. This fully contradicts the current law, whose starting point is that the “user” in a copyright perspective is the person who uploads the copyrighted content with the intention of making it available to the public; a service provider becomes responsible for such content only if it refuses to take action once it has become aware of the content being illegal.

The background to these provisions is the increased share of the advertisement revenues flowing to certain US tech giants, which has upset the European media industry. Unfortunately, nothing indicates that the rules to be introduced will make the advertisement revenue streams return to the European creative sectors or increase the growth and competitive edge of the digital single market.