Copyright in the Digital Single Market Directive – Implementation

Introduction

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.

** Update 12 November 2019: New academic statement published **

Safeguarding User Freedoms in Implementing Article 17 of the Copyright in the Digital Single Market Directive: Recommendations from European Academics

Academic opinions

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

 

Stakeholder dialogue

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.

Critical summaries by the Communia Association of the dialogues can be found here: 

https://www.communia-association.org/2019/10/23/article-17-stakeholder-dialogue-day-1-old-old/

https://www.communia-association.org/2019/11/11/article-17-stakeholder-dialogue-day-2-filters-not-licenses/

 

Legal materials

Directive with Recitals grouped by Article

[Document to follow]

 

National consultations and transpositions by country

France

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

Germany

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)

Ireland

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)

The Netherlands

July 2019: Publication of draft Implementation Bill on Copyright Directive in the Digital Single Market, and Consultation


Court of Justice of the European Union

Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 6 November 2018 — LF v Google LLC, YouTube Inc., YouTube LLC, Google Germany GmbH (Case C-682/18)

Hearing: 25 November 2019 reported by Politico here and here.

[More case law to follow]