UK: Re-Writing The Copyright Rulebook: Analysing The European Commission's Copyright Reform Proposals

More than a year after the Commission announced its Digital Single Market (DSM) Strategy, the Commission continues to press ahead in delivering concrete proposals. The latest – and arguably most significant yet – are its plans to reform the European copyright landscape through a new Copyright Directive, which was formally announced by the Commission on the 14th September ("the Proposal"). This is separate from its earlier proposal to introduce a Regulation on the cross-border portability of online content services. It follows several public consultations launched by the Commission regarding, amongst other things, EU copyright laws, online intermediaries and the role of publishers in the copyright value chain. Not for the first time, the suspense of the proposals was lessened, somewhat, by a leaked draft of the Proposal that appeared online a few weeks prior. Nonetheless, now that the proposal has been formally published, we can consider some of its most significant and controversial aspects.

The "value gap" – Article 13

What is it? Article 13 of the Proposal seeks to address the so-called "value gap" between the amount of copyright content exploited by ISPs (such as YouTube) and the royalties that such platforms pay to rightsholders. Under the Proposal, ISPs that store and provide to the public access to large amounts of works uploaded by users will be required to agree licensing deals with rights-holders or implement "effective content recognition technologies" (i.e. content filters) to prevent the availability of those works. For rights-holders who feel they are not receiving fair remuneration for their work, this Proposal could be a positive development. Intermediaries, on the other hand, are less likely to see the bright side.

What about the hosting exemption? One of the questions that inevitably arises is how this fits with the hosting exemption for intermediaries enshrined by Article 14 of the E-Commerce Directive 2000/31/EC. Recital 38 of the Proposal seeks to address this by stating that the requirement remains subject to the hosting exemption. The recital pays homage to the famous L'Oreal v eBay case (C-324/09) by referencing the test of whether an ISP plays an "active role, including by optimising the presentation of the uploaded works...". Moreover, the recital appears to reach the conclusion that ISPs that store and provide access to the public to copyright-protected works uploaded by their users will be performing an act of communication to the public in respect of those works. Having previously heard the Commission's statements that it would retain the existing intermediary liability regime, ISPs will have renewed concern that their safe harbours will not be so safe in the future.

A new obligation to monitor? There is also a risk that the Proposal imposes on ISPs a duty to monitor all content uploaded by users. Previously, ISPs have been able to rely on Article 15 of the E-Commerce Directive and associated case law, such as Scarlet v SABAM (C-70/10), which provided that ISPs do not have a general duty to monitor content on their sites. However, the reforms might force them to invest in expensive filtering technology, raising the spectre of significantly increased barriers to entry for new providers. It seems that Member States will be left with the unenviable task of reconciling these competing provisions. ISPs and rights-holders alike will be dependent on how Member States interpret "large amounts of subject matter", and how they exercise their discretion to "adjust the obligation in circumstances where the resulting administrative burden would be disproportionate to the revenues generated by the exploitation of the work".

'Fair remuneration' – Articles 14 and 15

What is it? Article 14 of the Proposal seeks to ensure that rightsholders receive regular and detailed information about how their works are being exploited. The need for greater reporting transparency has long been acknowledged within creative industries and so one might expect this provision to generally be welcomed, although certainly not by producers who have bought out rights and so have had no reporting obligations to the rightsholders concerned. It remains to be seen, also, how "regularly" such information will have to be provided once this has been implemented into national law. Some Member States have already taken steps to require frequent provision of information, which require significant administrative resources by media companies to comply. Producers and distributors will also be very concerned Article 15 of the Proposal. It provides that, notwithstanding any agreed licence arrangements, rightsholders will be entitled to additional remuneration from a licensee if the royalty agreed was "disproportionately low compared to the subsequent revenues and benefits derived from the exploitation of the works or performances". While this is unheard of in some member states, such a right has existed in Germany for about a decade already and has led to significant litigation over the level of appropriate remuneration in difference licensing scenarios.

What does it mean? As drafted, Article 15 threatens to undermine fundamental principles of contractual certainty and make future business planning even more difficult. Indeed, it may create significant uncertainty for online services, agency businesses, rights distribution companies, event operators and rights-holders alike. Moreover, the recitals to the Proposal suggest there may be significant scope for interpretation by Member States, not least in relation to how such a claim would be heard.

New publishers right – Article 11

What is it? A new ancillary right for publishers of press publications (a broader term than the "news publishers" that we saw in the draft that was leaked) to license the reproduction and making available of their news publications online for 20 years. The definition of "press publication" in Article 2(4) of the Proposal is drafted fairly widely and includes any collection of literary works of a journalistic nature under a single title, such as newspapers, magazines and news websites.

Why does it matter? Press publishers may be entitled to charge anyone who reproduces or makes available to the public any part of their press publication. This will be subject to the usual copyright exceptions and defences, including quotation for purposes such as criticism and review. In theory, this could help slow the notable decline of the traditional newspaper industry and support written journalism, by providing an additional means of monetising news content. However, the current drafting of this new ancillary right means that it will not just affect 'pure' news aggregators, such as Google News, but potentially also social media websites where even small news snippets are posted, and even the use by private individuals (which is not expressly excluded from the Proposal despite public statements by the Commission to this effect). Similar domestic rights introduced in Spain and Germany in the last three years, which are targeted just at search engines and news aggregators, have failed to benefit the newspaper industry and just led to reduced information available to users on the internet.

New mandatory exceptions – Articles 3, 4 and 5

What are they? Articles 3, 4 and 5 of the Proposal require all Member States to implement three copyright exceptions: (i) one for "text and data mining", which permits research organisations to make copies of works they have lawful access to for the purposes of scientific research; (ii) another for on-site or online education purposes (provided the source is acknowledged and it is for non-commercial purposes); and (iii) finally, one for the preservation of cultural heritage. Interestingly, the campaign for a mandatory exception for "freedom of panorama" appears to have fallen on deaf ears.

Why does it matter? These exceptions should benefit the research and education sectors by clarifying their rights and making educational works more accessible. However, the teaching exception will not apply if a sufficient licence is readily available on the market (as is very much the case in the UK as a result of cooperation between the education sector and collecting societies over recent years). As for the text and data mining exception, this will not be capable of being overridden by contract.

Other developments

Cross-border access to ancillary digital broadcasting services. On the same day as the Proposal was published, the Commission published a separate proposed Regulation to facilitate cross-border access to digital broadcasting services. We will address this proposal in more detail in a separate client alert – keep your eyes peeled.

The Marrakech Treaty. In addition, the Commission published a draft Directive and Regulation which, together, seek to bring EU law into line with its commitments under the Marrakech Treaty, which the EU signed in 2014. The proposals seek to introduce a new mandatory exception allowing people who are blind, have other visual impairments or are otherwise print-disabled to access books and other content in formats that are accessible to them, including across borders.

What happens next (and Brexit)?

It has been suggested that, not for the first time, the Commission has tried so hard to please everybody with the Proposal that it has inevitably ended up displeasing many stakeholders. There is always a delicate balance to be struck in copyright reform and, notwithstanding some of the issues highlighted above, it is too early to conclude whether this Proposal will be a success.

The Proposal must now go through the European legislative process before it is adopted. The Commission has submitted the Proposal to the Council of the EU and the European Parliament for review and each Member State will undertake its own review and comment. If approved, each Member State must implement the Proposal within the specified timeframe (the proposed timeframe is 12 months from the directive coming into force).

No commentary on EU legislation would be complete these days without considering the "B" word: Brexit. We do not yet know whether the UK will have formally exited the EU by time the Proposal comes into force. Either way, we should continue to assume that the UK will wish for its copyright regime to be consistent with the EU position and, as such, this Proposal needs to be taken very seriously. The Proposals have the potential to significantly impact the business of many companies in the creative and audiovisual industries, whether or not they do business in the EU. There will be opportunities for stakeholders to have their opinions heard and we encourage all businesses to join the debate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions