With the aim of making European copyright laws “fit for the digital age”, the European Parliament recently passed Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market.
Increasingly, news content is consumed through social media platforms and news aggregation platforms. In the absence of a framework protecting the copyright of content, it can be difficult for publishers of news articles to recoup their investment when their work is reproduced online.
Whilst the Directive addresses a number of issues related to copyright and digital rights, of particular interest are Articles 15 and 17 of the Directive.
The Directive extends to press publishers the rights provided for in the Copyright Directive 2001/29/EC, effectively giving publishers and journalists the right to authorise or prohibit the digital reproduction of their work for commercial use. The aim is to ensure that publishers and journalists are appropriately remunerated when news aggregator websites reproduce their content.
The right extended to publishers is, however, subject to certain limitations. First, the right will not apply where the publication is reproduced privately or for non-commercial purposes. This allows individuals to share and reproduce publications online without a licence as long as they do so in a private capacity. Secondly, the right will not apply to hyperlinking. The right will also not apply in respect of the use of individual words or very short extracts of a press publication. It remains to be seen how the term “very short extracts” will be interpreted. The preliminary recitals to the Directive make it clear the legislative intention in this regard should not be curtailed by providing as follows:
“Taking into account the massive aggregation and use of press publications by information society service providers, it is important that the exclusion of very short extracts be interpreted in such a way as not to affect the effectiveness of the rights provided for in this Directive.”
The Directive introduces new requirements for certain online service providers to conclude licensing agreements with publishers before uploading or sharing copyright-protected works. Any online content-sharing service providers (OCSSP) who, for profit making purposes, gives access to copyright-protected works will require such a licence. Not-for-profit encyclopaedias such as Wikipedia and educational sources are among those content-sharing services who are exempt from the requirement.
Should an OCSSP make available copyright-protected work to the public without first obtaining a licence allowing them to do so will be liable for copyright infringement unless they can demonstrate:
- that they made sufficient efforts to obtain an authorisation;
- they prevent access to any infringing content; and,
- in the event of being notified by the copyright-holder, they acted expeditiously in disabling access to and removing the content from their website, and undertake to prevent further uploads of relevant works.
By virtue of Article 17 OCSSPs will no longer be able to share copyright-protected material and allege that they were unaware of the copyright protection.
The Directive does include exemptions where the reproduction of the content is for the purpose of quotation, criticism, review, caricature, parody and pastiche.
OCSSPs which have been in existence for a period of less than 3 years and have an annual turnover of less than €10 million will be only be required to prove that they made best efforts to obtain copyright authorisation and prove that they acted expeditiously upon receiving notice from the copyright holder in order to avoid liability for breach of the legislation.
Whilst the Directive will bring into place significant reforms in relation to the treatment of copyright works in the digital context within the EU, member states have 2 years to bring in the necessary reforms at domestic level to give the Directive effect. As such, we are unlikely to see the reforms come into place before 2021. Furthermore, Polish authorities have already filed a complaint with the European Court of Justice, arguing that particular requirements within the Directive, notably within Article 17, may result in preventive censorship. As such, there is reasonably long, and possibly winding, road before these reforms to copyright law come into effect.
For further information, please contact Matthew Austin firstname.lastname@example.org at Hayes solicitors.
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About the Author
Matthew is a partner in the Commercial & Business team at Hayes solicitors. Matthew advises clients in relation to all forms of commercial dispute resolution and provides general commercial advice. Matthew also advises clients on general commercial matters including; contract law, intellectual property/ copyright, media law, and general commercial agreements.