The EU Trilogue (the informal tripartite meetings on legislative proposals between representatives of the European Parliament, the Council and the Commission) reached a breakthrough agreement on copyright rules in the Digital Single Market on February 13, 2019.

The EU Commission first proposed modernization of copyright rules (EU previous provisions on the matter date back to 2001) in September 2016, as part of the Digital Single Market Strategy. There has since been intense debate and lobbying, especially regarding Article 11 (reinforcing protection of press publications on the Internet) and 13 (modifying responsibility of online platforms for infringing uploaded content).

The text agreed on February 13 settles a number of debated issues. In particular, it increases the possibility to use copyrighted content for education, research and the preservation of cultural heritage. Exceptions allowing such uses have been modernised and adapted to technological developments (permitting, for example, datamining and illustrations for teaching).

The agreement also extends cross-border and online access to copyright-protected content for citizens. New provisions increase the availability of audiovisual works on VoD platforms, facilitate digitisation and distribution of works not commercially available and allow free online sharing, with complete legal certainty, of copies of works of art in the public domain.

Finally, the future directive will establish fairer division of value, in order to enable better functioning of the copyright market and stimulating creativity, through:

  • strengthening the position of right holders to negotiate and be remunerated for online exploitation of their content by user-controlled content platforms; 
  • establishing rules improving transparency in the remuneration of authors and performers;
  • creating a new neighbour right for press publishers to control the use of their content by online service providers.

However, creation of hyperlinks and reuse of isolated words or very short extracts will be excluded from the scope of the new right granted to publishers of press publications. Memes and gifs will continue to be available and shareable on online platforms.

Additionally, small platforms (online service providers with less than three years of existence in the Union, a turnover of less than €10 million and less than 5 million users per month) will benefit from a lighter regime in the absence of authorisation from rights holders. These platforms will only have to prove that they have done everything possible to obtain authorization and that they have acted promptly to remove unauthorized works that have been reported to them by rights holders, in order to avoid being held liable for unauthorized works.

Other platforms will be directly liable for unauthorised acts of communication to the public (exception to Article 14 of Directive 2000/31/EC), unless they demonstrate that they have:

  1. made best efforts to obtain authorisation;
  2. made best efforts to ensure the unavailability of specific works; and
  3. acted expeditiously, upon receiving a sufficiently substantiated notice by the rights holders, to remove from their websites or to disable access to the notified works and made best efforts to prevent their future uploads.

This provision (Article 13) is still criticized for compelling service providers to upload filters that could hinder creativity and freedom of speech.

The official agreement is not available yet, as it needs first to be formally confirmed by the European Parliament and the Council of the EU in the coming weeks. Once officially adopted, the member states will have 24 months to transpose the new rules into their national legislation.

This agreement is part of a broader initiative to adapt EU copyright rules to the digital age that also includes the recent regulation on cross-border portability of online content services and the future agreement regarding legislation on TV and radio programmes.

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