Salient features of the New Copyright Directive - Part 2Related Practice Area: Technology & IP Transactions
Beyond the hype, the controversy, talk of meme bans and impending doom for the internet, what will the new law really change? This article is a continuation of an earlier article which delved into the notorious article 13, now article 17.
Part 2 – Beyond Article 13 (now Article 17)
Beyond Article 17, the new Copyright Directive introduces an array of much-needed updates to the legislative framework governing copyright law in and across the EU. It essentially brings Copyright law into the digital age by attempting to achieve a fair and balanced content industry, where all contributors to the creative process are adequately compensated for their efforts in this sector, across all mediums, particularly digitally.
A. A New Category of Rightholders
The press industry has been struggling for years to counter the steady decline of print, which has very much endangered its existence, together with the livelihood of creative actors active within the industry. The new Copyright Directive attempts to reinvigorate the press industry by guaranteeing its revenue streams and placing it on par with analogous actors elsewhere in the creative landscape.
As the newest form of rightholder, press publishers have been granted a neighbouring right, very much akin to that of neighbouring right-holders in other creative sectors, such as that enjoyed by literary publishers and audiovisual and music producers.
By granting press publishers a neighbouring right in their publications, which is independent of the rights of other rightholders in the content they disseminate (such as authors of articles, photographers and designers), European legislators have recognised their involvement and contributions to the content industry, and have thus granted them IP protection for their investments and efforts.
The law has also provided a right for authors of press publications to receive an appropriate share of revenue generated by press publishers in the digital space, thereby ensuring that all actors within this industry are fairly compensated for their creative effort and labour.
Initially, certain controversy arose relating to hyperlinking and previews of works generated by internet users and search engines, and whether the new neighbouring right granted to press publishers would affect this well-established feature across the web. From the outset, the quotation exception to copyright should have dispelt such fears, however the legislator left no door ajar, and expressly excluded hyperlinking and user activity from the remit of this new neighbouring right, on the final text.
B. New Mandatory Exceptions to Copyright
Previously, under the Infosoc Directive, only one mandatory exception to Copyright was enshrined and required to be made available across the EU, being that applicable to temporary acts of reproduction. However, the new Copyright Directive has introduced three further mandatory exceptions; being text and data mining (“TDM”), cross-border teaching and the preservation of works by cultural heritage institutions.
Arguably, the final text’s overhauled Article 17, has also introduced further mandatory exceptions to copyright, by ensuring that users may rely on the exceptions related to caricature, parody, pastiche, quotation, criticism and review, when contesting the removal of allegedly infringing content by online intermediaries. This indubitably dispels the considerable criticism which the Directive has received from those claiming it will introduce a meme ban.
The new mandatory TDM exception will greatly facilitate new breakthroughs in scientific research by ensuring that researchers making copies of vast amounts of protected works (such as scientific papers or data sets) for the sole purpose of analysing them in order to discover patterns, trends and other useful indicators, will be well within the law, subject to certain safeguards put in place to protect rightholder interests. It is anticipated that this will have a significant impact in the fields of artificial intelligence and medical research.
The exception related to cross-border teaching has been made subject to the important caveat that it does not extend to content which is in itself intended for educational consumption such as sheet music or other content intended for the educational market, like textbooks. This caveat has thereby safeguarded the livelihood of those active in this segment of content creation.
The new copyright framework has also introduced a mandatory exception to copyright whereby cultural heritage institutions such as libraries and archives will now be able to make copies of copyright-protected works within their repositories, ensuring that these institutions will be able to preserve our collective cultural heritage for posterity and for the benefit of future generations.
Moreover, cultural heritage institutions have also been granted the ability to use and make available out of-commerce works for non-commercial purposes, by dealing directly with collective management societies rather than the right-holders themselves, thereby facilitating better and wider public access to the rich body of works in the public domain, once again subject to certain safeguards in this respect, which are intended to protect rightholder interests.
C. A Fairer System for Artists and Performers
Perhaps one of the most important reforms brought about by the EU copyright overhaul, has been to reassert the position of creators and performers as central actors within the creative landscape, by granting them more control over their creations.
Article 18 of the new Copyright Directive imposes an obligation upon Member States to ensure that authors and performers receive an appropriate and proportionate share from the commercial exploitation of their work, even in instances where they have transferred or assigned their rights to other actors within the industry, such as record labels, publishers and collecting societies. However, in so doing, Member States must consider the principle of contractual freedom and thus achieve a fair balance between the various rights and interests at stake.
The directive also introduces a transparency obligation towards authors and performers, whereby they must receive periodical, up-to-date, relevant and comprehensive information as to the exploitation of their work by parties to whom their rights in a work have been transferred.
Besides assuring creators that they are receiving their fair share from the commercial exploitation of their works, this holistic information will enable them to re-evaluate their original agreements with such parties. Coupled with the contractual adjustment mechanism introduced by the Directive, creators now enjoy the faculty to readjust their agreements with licensees and assignees, by requesting additional remuneration in instances where it is disproportionately low compared to the revenues and benefits derived from the works in question.
Another important faculty granted to creators is the right to revoke exclusive licenses , in cases where the licensed work is not being commercially exploited by the licensee, thus enabling them to regain control over their works in such instances.
While the revamped EU copyright framework is far from perfect, overall legislators seem to have struck a fair balance between the interests of the various involved stakeholders. It has brought copyright law up-to-date with modern realities and the increasingly-digital world we live in, by aiming to address the new struggles which have emerged since Infosoc. Moreover, it has reconsolidated the position of certain weaker actors within this industry. By providing appropriate revenue streams for creators and other entities involved in cultural production, it has the potential to reinvigorate the creative landscape and steer it towards a path of renewed and sustainable growth, for the benefit of all actors within the content-creation chain.