On respectively 26 March 2019 and 15 April 2019, the European Parliament and the Council of the European Union adopted the proposal of the European Commission for a Directive on Copyright in the Digital Single Market (the "Copyright Directive"). The Copyright Directive aims to modernise copyright rules and ensure that the longstanding rights and obligations of copyright law also apply to the internet while ensuring that the internet remains a space of freedom of expression. Once the text has entered into force (which will happen 20 days after its publication in the Official Journal of the European Union), EU Member States will need to transpose the new rules in their national legislation within 24 months.

The Copyright Directive has three main objectives:

  • improve access to copyright-protected content online and across borders;
  • foster a better functioning copyright marketplace and stimulate the creation of high-quality content;
  • create more opportunities to use copyright-protected material for education, research and preservation of cultural heritage

Better Access for Citizens to Content Online and Across Borders

The Copyright Directive will create favourable conditions for cross-border distribution of television and radio programmes online. It will also make EU audio-visual works more accessible on video-on-demand ("VoD") platforms. Currently, less than half of EU films are available on a VoD platform and they are often only available in their country of origin. To improve this, the Copyright Directive sets out a negotiation mechanism that will ease the process of reaching contractual agreements and remove obstacles in relation to the licensing of the rights necessary to make audio-visual works available on VoD platforms.

Furthermore, the Copyright Directive provides for a new licensing mechanism for copyright protected works that cannot be found commercially anymore. Non-exclusive licences for non-commercial purposes entered into by collective management organisations and cultural heritage institutions for the purpose of digitising and disseminating online and across borders the works held in their collections will be presumed to extend to right holders of the same category as those covered by the licence who are not represented by the collective management organisation. European citizens will thus benefit from wider access to out-of-commerce works forming part of the cultural heritage.

Rules Fostering Better Functioning Copyright Marketplace

The Copyright Directive will introduce more balance in the relations between, on one hand, authors and performers and, on the other hand, their producers and publishers. New measures include the right for content creators to revoke their rights if their works are not being exploited, transparency obligations in relation to the exploitation of their works, and the right to an appropriate and proportionate remuneration for content creators. Authors and performers will be able to claim additional remuneration when the remuneration initially agreed upon is disproportionately low in comparison with the benefits derived by the distributor exploiting these rights.

The position of copyright holders with respect to the exploitation of their content on video-sharing platforms will also be strengthened. According to the new rules, platforms that store and provide access to large amounts of works will be obliged to obtain authorisation from right holders in order to perform acts covered by copyright. In the absence of an agreement, the platforms will have to undertake specific steps to avoid liability for content uploaded to their site.

The Copyright Directive also seeks to support the press and quality journalism by strengthening the bargaining position of press publishers in the negotiation of the use of their content by online services providers. In particular, the Copyright Directive provides that journalists will receive an appropriate share of the revenues generated from the press publishers' right. Lastly, the online exploitation of publications and the enforcement of rights will also be strengthened.

Better Access to Protected Content for Purposes of Education, Research and Culture

The Copyright Directive envisages a mandatory copyright exception in relation to teaching activities. It covers digital cross-border uses of protected content for the purposes of teaching (including online) and applies to educational establishments and teachers.

An exception allowing for text and data mining will simplify the administrative burden of universities and research organisations to secure copyright clearance. These institutions will be able to analyse large sets of data for scientific purposes through the use of automated technologies.

Cultural heritage institutions, such as libraries and museums, will be able to use digital preservation techniques to make copies of the works that form part of their collections. This will allow the digitisation and preservation of the EU cultural heritage

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