The Directive on Copyright in the Digital Single Market (CDSM) entered into force on 7 June 2019 (20 days after publication in the Official Journal of the European Union). It must now be transposed by Member States into national law by 7 June 2021.
The Directive is a complex piece of legislation, 34 pages long. The most contested Article 17 is introduced by 11 recitals (61-71) and covers in 10 dense sections new obligations by “online content-sharing service providers”, a new class of services that communicate to the public copyright content uploaded by its users. It is therefore very likely that we’ll see widely diverging implementations, and decades of references to the Court of Justice of the European Union, which is already suffering from copyright overload.
This page offers an independent academic perspective on the implementation of the directive, continuing previous work on the legislative process.
European Copyright Roundtables: Implementing the Digital Single Market Directive
This is an academically brokered conversation, involving divergent interests and industry stakeholders.
The first roundtable took place in Brussels on 13 June 2019, focussing on Article 17. Examined were (i) provisions that seek to define scope and target; (ii) licensing modalities (including what constitutes ‘best effort’); (iii) preventive obligations (such as filters); (iv) over-blocking (including safeguards and redress mechanisms).
Safeguarding User Freedoms (Statement by European Academics)
A group of academics issued a statement on 12 November 2019:
Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academic
European Copyright Society
Opinions are being prepared by the European Copyright Society on the implementation of selected articles to be published as a series in the “Journal of Intellectual Property, Information Technology and Electronic Commerce Law (JIPITEC)“.
Article 3, 4: Text and data mining
Articles 8-12: Collective management & collective licensing
Article 14: Works of visual art in the public domain
Article 17: Use of protected content by online content-sharing service providers
Article 18ff: Fair remuneration in exploitation contracts of authors and performers
Association Littéraire et Artistique Internationale (ALAI)
Under Article 17, the European Commission is required to organise a stakeholder dialogue “to discuss best practices for cooperation between online content-sharing service providers and rightholders”.
Article 17(10) says that “[t]he Commission shall, in consultation with online content-sharing service providers, rightholders, users’ organisations and other relevant stakeholders, and taking into account the results of the stakeholder dialogues, issue guidance on the application of this Article […]”. The Commission intends to publish implementation guidance in the first half of 2020.
The first dialogue (covering music, games and software) was dominated by the music sector. It took place on 15 October 2019, and is documented here.
The second dialogue took place on 5 November 2019, with a focus on the audio-visual sector (including sports) and publishing sector (including news). It is documented here.
The third dialogue took place on 25 November 2019. It is documented here. Aims of the dialogue included increasing technical understanding of the operation of content identification systems. Arguably, this should have taken place before the Directive was adopted.
The fourth meeting took place on 16 December 2019. It is documented here.
The fifth dialogue took place on 16 January 2020. The meeting begun what the EC described as “a third phase of the stakeholder dialogue” which is to “focus on the practical application of Article 17”. It is documented here.
The sixth meeting took place on 10 February 2020. It is documented here.
The next meeting, originally scheduled for 30 March 2020, has been postponed.
Critical summaries of the stakeholder dialogues by the Communia Association:
Reports on the stakeholder dialogues by European Digital Rights (EDRi):
20 May 2019: Open Letter: Copyright Working Group Must Include NGO Voices
Open letter to EC calling for the involvement of human rights and digital rights organisations, the knowledge community, free and open source software developers, and communities in all of its efforts around the transposition and implementation of article 17.
Prepared by The Civil Liberties Union for Europe (Liberties), and signed by over 40 users’ and fundamental rights organisations.
14 January 2020: More Transparency Needed During Copyright Debate
Open letter to the EC calling for opening of the draft guidelines to consultation with the participants of the stakeholder dialogues and the broader public.
Prepared by Liberties and signed by over 40 users’ and fundamental rights organisations.
Answer by Roberto Viola (DG CONNECT, Director General), who wrote that participants of the stakeholder dialogue “have my assurance that you will be further consulted before adoption of the guidance”.
Reactions to the adoption of the CDSM Directive
26 March 2019 (day of the final vote in the European Parliament)
CCIA Europe: EU Copyright Directive: A Missed Opportunity for Europe
Communia Association: The new Copyright Directive is a lost opportunity for Europe
DIGITALEUROPE: DIGITALEUROPE press release on the Plenary adoption of Copyright Directive
EDiMA: EDiMA reaction: EU Copyright Directive is not fit for digital age
EDRi: Press Release: Censorship machine takes over EU’s internet
EFF: EU’s Parliament Signs Off on Disastrous Internet Law: What Happens Next?
EuroISPA: EuroISPA regrets plenary vote on EU Copyright Directive
FERA, FSE, SAA: A new EU Copyright law – a long-fought battle won
IFPI: Statement on the European Parliament plenary vote on the Copyright Directive
IFJ, EFJ: IFJ/EFJ hail adoption of Copyright Directive and urge EU Member States to adopt laws that ensure fair and proportionate remuneration for journalists
Liberties: Copyright Directive Passes, But Fight Against Upload Filters Isn’t Over
NME: European Parliament votes to adopt an EU Copyright Directive fit for the 21st century
Open Knowledge Foundation: EU copyright vote a ‘massive blow’ for internet users
OpenMedia: European Copyright Directive passes, setting dangerous precedent for the open Internet
PRS for Music: PRS for Music boss hails Copyright Directive a ‘massive step forward’
Wikimedia Foundation: European Parliament limits internet freedom in controversial copyright vote
27 March 2019
28 March 2019
29 March 2019
15 April 2019 (final text adopted by the Council)
Authors Group (ECSA, EWC, FERA and FSE): European organisations of authors welcome the final adoption of the Copyright Directive and call on EU Member States to seize this historical opportunity to improve the livelihoods of all authors and foster Europe’s creativity
EDRi: EU Member States give green light for copyright censorship
EMMA, ENPA, NME, EPC: EU Copyright reform adopted by Member States: Publishers call for quick and appropriate implementation into national laws
FEP: Press release: Adoption of the CDSM Directive by the Council
GESAC: A major achievement for Europe: GESAC welcomes the final adoption of the Copyright Directive
Society of Authors: Copyright Directive receives final approval by EU
16 April 2019
IFLA: The EU Copyright Reform: Battles Won, Bullets Dodged, and the Questions that Remain
IGEL: Council lets copyright reform pass – the die is cast
IMPALA: ‘It was a long road’: IMPALA welcomes green light for Copyright Directive
17 April 2019
IFLA, EBLIDA, SPARC Europe, EUA, LIBER: Press Release on the Adoption of the European Directive on Copyright in the Digital Single Market
19 April 2019
Communia Association: DSM directive adopted – implementation in Member States can still make a difference
June 2019: European University Association
EU Copyright Directive. EUA issues guidelines for universities
November 2019: ELIDA, IFLA, LIBER, SPARC Europe
Transposing the Directive on Copyright in the Digital Single Market: A Guide for Libraries and Library Associations
December 2019: Communia Association
Guidelines for the Implementation of the DSM Directive
EU Legal materials
Directive with Recitals grouped by Article
Document courtesy of Professor Alexander Peukert
TITLE I: GENERAL PROVISIONS
TITLE II: MEASURES TO ADOPT EXCEPTIONS AND LIMITATIONS TO THE DIGITAL AND CROSS-BORDER ENVIRONMENT (RECITALS)
Art. 3 – Text and data mining for the purposes of scientific research (recitals)
Art. 4 – Exception or limitation for text and data mining (recitals)
Art. 5 – Use of works and other subject matter in digital and cross-border teaching activities (recitals)
Art. 6 – Preservation of cultural heritage (recitals)
Art. 7 – Common provisions (recitals)
TITLE III: MEASURES TO IMPROVE LICENSING PRACTICES AND ENSURE WIDER ACCESS TO CONTENT
Chapter 1 Out-of-commerce works and other subject matter
Art. 8 – Use of out-of-commerce works and other subject matter by cultural heritage institutions (recitals)
Art. 9 – Cross-border uses (recitals)
Art. 10 – Publicity measures (recitals)
Art. 11 – Stakeholder dialogue (recitals)
Chapter 2 Measures to facilitate collective licensing
Chapter 3 Access to and availability of audiovisual works on video-on-demand platforms
Chapter 4 Works of visual art in the public domain
TITLE IV: MEASURES TO ACHIEVE A WELL-FUNCTIONING MARKETPLACE FOR COPYRIGHT
Chapter 1 Rights in publications
Chapter 2 Certain uses of protected content by online service
Art. 17 – use of protected content by online content-sharing service providers
(recitals para 1)
(recitals para 2)
(recitals para 3)
(recitals para 4 and 5)
(recitals para 6)
(recitals para 7)
(recitals para 8)
(recitals para 9)
(recitals para 10)
Chapter 3 Fair remuneration in exploitation contracts of authors and performers (recitals)
Art. 18 – Principle of appropriate and proportionate remuneration (recitals)
Art. 19 – Transparency obligation (recitals)
Art. 20 – Contract adjustment mechanism (recitals)
Art. 21 – Alternative dispute resolution procedure (recitals)
Art. 22 – Right of revocation (recitals)
Art. 23 – Common provisions (recitals)
TITLE V: FINAL PROVISIONS
Art. 24 – Amendments to Directives 96/9/EC and 2001/29/EC
Art. 25 – Relationship with exceptions and limitations provided for in other directives
Art. 26 – Application in time
Art. 27 – Transitional provision
Art. 28 – Protection of personal data (recitals)
Art. 29 – Transposition (recitals)
Art. 30 – Review
Art. 31 – Entry into force
Art. 32 – Addressees
National consultations and transpositions by country
Transposition of Article 15 (press publishers’ right)
23 July 2019: Legislation adopted
24 October 2019: Enters into force
LOI n° 2019-775 du 24 juillet 2019 tendant à créer un droit voisin au profit des agences de presse et des éditeurs de presse
Transposition of Articles 17-22
5 December 2019: Legislation tabled
Projet de Loi relatif à la communicationaudiovisuelle et à la souveraineté culturelle à l’ère numérique
January 2020: Mission Report: Towards more effectiveness of copyright law on online content sharing platforms: overview of content recognition tools and possible ways forward.
Report prepared jointly by the CSPLA (Higher Council on Literary and Artistic Property), HADOPI (High Authority for the Dissemination of Works and the Protection of Rights on the Internet) and the CNC (National Centre for Cinema and the Moving Image) to inform implementation of art. 17.
September 2019: Consultation on transposition of CDSM and SatCab Directives:
Öffentliche Konsultation zur Umsetzung der EU-Richtlinien im Urheberrecht (DSM-RL (EU) 2019/790 und Online-SatCab-RL (EU) 2019/789)
January 2020: Draft for discussion by the Federal Ministry of Justice and Consumer Protection concerning transposition of art. 15 (press publishers’ right) and arts. 3-7 of CDSM
August 2019: Public consultation on the transposition of CDSM and CabSat Directives
Az IM és az SZTNH közös felhívása a szerzői jogi irányelvek átültetését érintő konzultációban való részvételre (Consultation notice published by the National Intellectual Property Office)
Consultation organised around seven topics: TDM exception (arts. 3-4); exception for use of works in digital and cross-border teaching activities (art. 5); out-of-commerce works (arts. 8-11); neighbouring right for press publishers (art. 15); liability of OCSSPs (art. 17); provisions governing the relationships between right holders and users (arts. 14, 16, 18 -23); the CabSat Directive.
September 2019: Consultation on the transposition of Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Articles 13-17)
October 2019: Consultation on the transposition of Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Directive on Copyright in the Digital Single Market)—Consultation Paper No. 2 (Articles 2-7)
November 2019: Consultation on the transposition of Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Directive on Copyright in the Digital Single Market)—Consultation Paper No. 3 (Articles 8-11 on Out-of-Commerce Works and Article 12 on Collective licensing with an extended effect)
November 2019: Consultation on the transposition of Directive (EU) 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (Directive on Copyright in the Digital Single Market)—Consultation Paper No. 4 (Articles 18-23 on Fair Remuneration)
January 2020: Schema di disegno di legge recante delega al Governi per il recepimento delle direttive europee e l’attuazione di altri atti dell’Unione europea – Legge di delegazione europea 2019 Bill of the Council of Ministers which includes guiding principles on implementation of the CDSM Directive (emphasis on the TDM exception).
January 2020: Preliminary information on the implementation of the CDSM and CabSat Directives and invitation to submit written opinions and proposals
PI/2020/6 Predbežná informácia k návrhu zákona, ktorým sa mení a dopĺňa zákon č.185/2015 Z. z. Autorský zákon v znení neskorších predpisov
November 2019: Public consultation on transposition of the CDSM and CabSat Directives
Consulta pública previa sobre un borrador de Anteproyecto de Ley sobre los derechos de autor y derechos afines en el mercado único digital europeo, por la que se incorporan al ordenamiento jurídico español la Directiva (UE) 2019/789 del Parlamento Europeo y del Consejo de 17 de abril de 2019, y la Directiva (UE) 2019/790 del Parlamento Europeo y del Consejo de 17 de abril de 2019
May 2019: Creation of a reference group by the Ministry of Justice to inform the implementation process. Over 80 organisations were invited to participate (list later expanded).
First meeting of the group was held on 18 June 2019. Seven future meetings will take place during the fall 2019 and spring 2020.
September 2019: Memorandum prepared by the Ministry of Justice and sent to the members of the reference group as basis for obtaining comments on the implementation of article 17.
January 2020: In response to a parliamentary question, the UK government says that it has no intention to implement the CDSM directive, and that it is not required to do so under the Brexit process.
Court of Justice of the European Union
VG Media v Google (Case C-299/17)
Request for a preliminary ruling from the Landgericht Berlin in case VG Media v Google LLC
The request made in the context of legal proceedings between VG Media and Google concerning the payment of damages for the use of text excerpts, images and videos in Google’s services pursuant to national press publishers’ right in Germany.
The regional court of Berlin asked the CJEU to consider the enforceability of the German press publishers’ right in light of the requirement to notify the European Commission of any draft technical regulation on services as foreseen in article 8(1) of the Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations.
The CJEU found that the German press publishers’ right is a rule specifically aimed at information society services (search engines), and a technical regulation which the EC should have been, but was not, notified of. Following the CJEU judgement, the German press publishers’ right became inapplicable and unenforceable.
Opinion by AG Hogan delivered on 13 December 2018
Judgement delivered on 12 September 2019
LF v Google YouTube (Case C-682/18)
Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 in case LF v Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbHThe request made in the context of legal proceedings between a plaintiff, a music producer and co-owner of a music publishing house, and YouTube, concerning the availability of videos infringing plaintiff’s copyright on the YouTube platform, following their initial removal.
The German Federal Court of Justice (BGH) referred six questions to the CJEU. The first question asks whether the operator of an internet video platform on which videos containing content protected by copyright are made publicly accessible by users without the consent of the rightholders carry out an act of communication within the meaning of Article 3(1) of the InfoSoc Directive. The BGH lists a number of circumstances which it deems important in the context of this question, including the automatic character of the upload and the fact that platform’s operator earns advertising revenue by means of the platform. The second question posed by the BGH, concerns a situation when the first question is answered in negative. The second question asks whether the activity of the operator of an internet video platform under the conditions described in question 1 comes within the scope of Article 14(1) of the eCommerce Directive. The full text of the reference is available here.
The International Literary and Artistic Association (ALAI) opinion (25 February 2019)
Poland v European Parliament and Council of the European Union (Case C-401/19)
Action for annulment of Article 17(4)(b) and Article 17(4)(c) of the CDSM Directive brought on 24 May 2019 by Republic of PolandPoland asked the CJEU to annul parts of article 17 of the CDSM Directive, since they infringe the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union. In its submission, Poland noted that by making it necessary for the service providers to carry out prior automatic verification (filtering) of content uploaded online by users, article 17 calls for introduction of preventive control mechanisms, which undermines the essence of the right to freedom of expression and information.
Statement by the Polish Ministry of Culture and National Heritage (in Polish)
US Senate hearings
Subcommittee on Intellectual Property hearings on the topic of updating and modernizing the U.S. Digital Millennium Copyright Act
10 March 2020, second hearing: “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?“
This resource has been supported by EU H2020 grant “reCreating Europe: Rethinking digital copyright law for a culturally diverse, accessible, creative Europe” (reference no. 870626) and Kretschmer’s Weizenbaum fellowship at Humboldt University and Wissenschaftszentrum Berlin.
EU Copyright Reform: Evidence on the Implementation of the Copyright in Digital Single Market Directive (Directive (EU) 2019/790)
CREATe Centre: University of Glasgow
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