SUPER KAT-EXCLUSIVE: the edges are Here's draft Directive on copyright in the Digital Single Market

Sunday, March 11, 2018

SUPER KAT-EXCLUSIVE: the edges are Here's draft Directive on copyright in the Digital Single Market

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It is the draft version of the forthcoming [it should be presented next month as part of the second copyright package] Directive on copyright in the Digital Single Market.

Taking into account digital and cross-border uses of copyright content, this new piece of legislation will change the copyright acquis.

More specifically, it will: introduce new exceptions and limitations, facilitate licences, and set rules aimed at ensuring a well-functioning marketplace for the exploitation of works and other subject-matter [translated: address the so called 'value gap'].

Mandatory exceptions (without freedom of panorama?)

Contrary to the general structure of Article 5 of the InfoSoc Directive which - with the exception of temporary copies in Article 5(1) - provides an optional list of exceptions and limitations that Member States are free to implement into their own legal system, the new directive [if adopted in its current form, ça va sans dire] mandates upon Member States to adopt the following exceptions or limitations:

[Article 3] Text and data mining for the benefit of research organisations [so, the beneficiaries are limited] in relation to works or other subject-matter to which they have lawful access for the purposes of scientific research [interestingly, the exception cannot be overridden by contract and is not limited to non-commercial uses]
[Article 4] Teaching on the premises of an educational establishment or through secure electronic network only accessible to staff and students, as long as the source is acknowledged and is for non-commercial purposes [but note that Member States can provide that exception does NOT apply if an adequate licence is easily available on the market]
[Article 5] Preservation of cultural heritage [this is not really surprising, and in my opinion it already followed from the decision of the Court of Justice of the European Union in Ulmer, C-117/13]

Interestingly, despite everything [including a public consultation], it seems that freedom of panorama will not be part of the directive.

Out-of-commerce works

Title III of the draft directive is devoted to use of this type of works by cultural heritage institutions through a collective management mechanism.

In other words, when a collective management organisation concludes a non-exclusive licence for non-commercial purposes with a cultural heritage institution, such a licence may be extended or presumed to apply to rightholders of the same category as those covered by the licence who are not represented by the collective management organisation, provided that a number of conditions are satisfied [whether this is actually OK is uncertain, especially further the Advocate General Opinion in the pending Soulier reference]

Rights in publications

Here it is: the much feared and criticised 'ancillary copyright'.

Draft Article 11 introduces in fact a right for publishers of news publications to authorise the online use [reproduction and marking available] of their news publications.

This new sui generis right is due to last for 20 years from the date of publication or the relevant news publication.

Value gap

Draft Article 13 [see also Recital 39] addresses the so called 'value gap' by requiring intermediaries that store and provide access to large amounts of works uploaded by users of their services to "take appropriate and proportionate measures to ensure the functioning of agreements concluded with rightholders and to prevent the availability on their services of works or other subject-matter not covered by such agreements, including through the use of effective content identification technologies" [translated: intermediaries need to become licensed and implement filtering technologies. Mmm: how can this be achieved without also reforming Article 3 of the InfoSoc Directive (see here), and Articles 14 and 15 of the Ecommerce Directive?]

Fair remuneration for authors and performers

Articles 14 and 15 implement a mechanism by which Member States will be required to ensure that authors and performers are entitled to have their contract adjusted when the agree remuneration is disproportionately low compared to the subsequent revenues and benefits derived from the exploitation of the works or performances"

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The text of the draft Directive is available here.