On 10 February 2021, the Luxembourg Government published draft legislation aiming at transposing into Luxembourg law the Directive on copyright and related rights in the Digital Single Market1 (the "New Copyright Directive") adopted on 17 April 2019.
The Luxembourg Government has launched a public consultation until 2 April 2021 allowing the stakeholders to express their views and needs with respect to the draft legislation. The Luxembourg Government mentions that, for the purposes of harmonising the laws and future case law of the Member States, they prepared the Luxembourg draft legislation taking into account the Belgium draft legislation and the French Law of 24 July 20192.
What are the key takeaways?
The Luxembourg draft legislation faithfully transposes into Luxembourg law two key provisions of the New Copyright Directive, which were highly discussed:
- Mandatory authorisation required for the use of protected content by online content-sharing service providers.
"Online content-sharing service providers" are defined as the providers of an information society service, one of the main purposes of which is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, such content being organised and promoted for profit-making purposes. YouTube is a typical example among the online content-sharing service providers. The Luxembourg draft legislation (as well as the New Copyright Directive) excludes a certain number of online players from this definition and in particular online marketplaces (such as Amazon Marketplace).
The Luxembourg draft legislation makes clear that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users. Consequently, and in accordance with the law on author's rights, authorisation from the right-holders must precede such acts.
A new liability regime derives from the requirement of obtaining authorisation; this liability regime itself being refined for new service providers whose annual turnover or audience does not go beyond certain thresholds as defined in Luxembourg draft legislation.
- Protection of publishers of press publications concerning online uses. Possibility to ask for remuneration.
The publishers of press publication are granted two legal rights (the right of reproduction and the right of making press publications available to the public, hereafter the "Neighbouring Rights") that will put them in a better position to ask online platforms, news search engines and news aggregators reproducing their press publications (such as Google News or Facebook) for an adequate remuneration.
The Neighbouring Rights are, however, limited in time and scope.
Limitation in scope: the Neighbouring Rights do not apply (i) to private or non-commercial uses of press publications by individual users, (ii) to acts of hyperlinking or (iii) in respect of the use of individual words or very short extracts of a press publication. Moreover, the Neighbouring Rights cannot be invoked against natural or legal persons already benefiting from rights over the protected items incorporated in press publications.
It remains to be seen whether online platforms, news search engines and news aggregators will not in the future rely on the exceptions listed under (ii) and (iii) above so they do not need to pay publishers3.
Limitation in time: the Neighbouring Rights that will be created will not apply to press publications first published before 6 June 2019. Furthermore, the Neighbouring Rights will expire two years after the press publication is published (from 1 January of the year following the date on which the press publication is published).
Further points of attention
In addition, the Luxembourg draft legislation transposes the provisions of the New Copyright Directive in relation to (i) the new mandatory exceptions to the author's rights and to the database rights, (ii) the principle of appropriate and proportionate remuneration for authors and performers when they license or transfer their exclusive rights for the exploitation of their works and (iii) the obligations and mechanisms that will reinforce the authors' and performers' rights in their contractual relationships. It is to be noted that the provisions under (ii) and (iii) do not apply to computer programs.
The deadline set out in the New Copyright Directive for implementation into national laws being 7 June 2021, the legislative process will likely accelerate shortly after the end of the public consultation.
1. Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC.
2. French Law n° 2019-775 of 24 July 2019 aiming at creating a related right for the benefit of news agencies and press publishers.
3. In France, a complaint was lodged before the Autorité de la concurrence (the "Autorité") in November 2019 by several unions representing press publishers against practices implemented by Google on the occasion of the entry into force of the French Law of 24 July 2019 (see footnote 2). On 9 April 2020, the Autorité found that Google's practices were likely to constitute an abuse of a dominant position, and caused serious and immediate harm to the French press sector. The Autorité ordered Google to conduct negotiations in good faith with publishers and news agencies on the remuneration for the re-use of their protected contents. The matter is still pending as some French newspapers reported that the Autorité would have mentioned in February 2021 in an internal report that they were not convinced by the agreement entered into between Google and the French press media.
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