In 2019, the EU published two Directives to set out copyright standards across the European Union and encourage the development of educational, cultural, and publishing sectors: Directive (EU) 2019/789 (Referred to as Directive 789 here) and Directive (EU) 2019/790 (Referred to as Directive 790 here). These two directives have had a significant impact on online services, requiring that they now also moderate content on their platforms for copyright infringements. Unlike “regulations” that need to be applied in their entirety across the EU, a “directive” sets out a goal that all EU countries must achieve by adapting the directive to its national law. As such, it is up to the Member States to devise laws and reach the obligations of the directives.
Overview of the Directives
The updated rules on copyright aim to achieve a balance of interests amongst various stakeholders across the EU Member States: creators, authors, publishers, researchers, online service providers, general Internet users, and the broader public. Directive 789 aims to facilitate the cross-border transmission of TV and radio programs in the EU, and to simplify rules on copyrights and related rights for online retransmission of those programs. Compared to Directive 789, which targets on-demand audio/video platforms and other broadcasters, Directive 790 pays more attention to online service providers that store and disseminate large volumes of user-generated content.
- For individual content creators: Directive 790 can help them to gain more bargaining power and fairer remuneration for their works.
- For general users: Directive 790 clarifies their rights to share or engage with copyright-protected content on online platformsAn online platform refers to a digital service that enables interactions between two or more sets of users who are distinct but interdependent and use the service to communicate via the internet. The phrase "online platform" is a broad term used to refer to various internet services such as marketplaces, search engines, social media, etc. In the DSA, online platforms..., while on the other hand, it also clarifies provisions on digital licensing agreements and other obligations to respect rightsholders for platforms.
- For scientific research, education, and cultural heritage preservation: Directive 790 grants them considerable copyright exceptions, allowing for easier access to needed content.
Key points of the Directives
Directive 789
| Country of origin principle | • To provide programs across borders, broadcasters only need to obtain authorization from right holders for the country where they have their main establishment. |
| Direct injection principle | • Refers to a technique by which a broadcaster transmits to distributors via a private line and the distributor then offers the relevant programs to the public. • In this case, both the broadcaster and the distributor need to obtain authorization for their participation in communicating with the public. |
| Mandatory collective management of online retransmission rights | • This makes it easier to obtain authorization from copyright holders as the right to provide or deny authorization has to be done through a collective management organization. |
Directive 790
| Copyright exceptions for public interests | • This makes it easier to use protected material for different purposes by introducing exceptions to copyright in cases such as: use of works for teaching, text and data mining, and preservation of cultural heritage. • Anyone can use and share copies of works of art in the public domain, without restrictions. |
| Sharing restrictions of copyright-protected content on online platforms | • The online content-sharing platform needs to obtain authorization from right-holders to make protected works on the platform available to the public. • If a licensing agreement is not reached, the platform needs to make “best efforts” to ensure that unauthorized content is not available on the platform, and to remove expeditiously any unauthorized content. |
| Protection for online press publications | • EU-based press publishers and authors are granted new rights for digital use of their publications by online service providers. • Acts of hyperlinking and very short extracts are not copyright-protected. |
| Renumeration for creators, authors, and performers | • States to ensure that creators receive fair remuneration for transferring or licensing their rights for exploitation to another party. • New rules allow creators to modify their initial contracts if the original remuneration is unreasonably low compared to revenues generated from the exploitation of their works. |
| Transparency and revocation | • Creators should receive, at least annually, up-to-date and comprehensive information about the exploitation of their works. • Creators have a right of revocation in the event of non-use of their work. |
| Individuals are not targets of the new rules | • Internet users can continue to share content on social media and websites without copyright restrictions. • Based on the principle of freedom of expression, any use of existing works for purposes of quotation, criticism, review, caricature, parody, and pastiche are explicitly allowed. • Platforms should establish internal-complaint mechanisms that allow users to appealIn the content moderation space, an appeal is a process whereby a user who is impacted by a company's decision can contest the decision by requesting it to be reviewed. The company's decision can range from disabling a user account, to denying access to certain services. This can involve requesting a review of the decision by another party within the... against erroneously removed content and should restore content swiftly if the removed content is authorized on the platform. |
What do these Directives mean for your business?
Along with the recently published Digital Services Act (DSA), the two copyright directives result in a series of operational implications for your business. Firstly, providers will have to ensure that they have a process in place to swiftly gain authorization for any protected work uploaded on their platform. In parallel, they will have to ensure that there is an effective mechanism in place to take down (i.e., moderate) content that has not received authorization, and restore it if it was erroneously removed. This moderation will need to be followed by the appropriate statement of reasons and redress mechanisms to be sent to users when their content is taken down. They will also have to make sure that both the rightsholder (who complained or withheld the rights) and the user (who uploaded the content) are duly informed. To add, the Directives indicate that creators, authors, and performers should be kept up to date with information about the exploitation of their work. The DSA, and multiple other codes, also bring in a transparency reporting process that will be crucial for businesses to be aware of and abide by. As such, there are several further implications that businesses will need to consider when they host user content.
Conclusion
Both directives have been transposed into national law in all EU countries since June 2021 and the DSA will be live as early as 2023 for very large online platforms. Online service providers that allow users to share copyright-protected content will need to assume more responsibilities in negotiating licensing agreements with rightsholders. More importantly, all this will also mean finding a practical balance between protecting users and rightsholders will be important. To be compliant with all aspects of these directives, as well as any future regulation or legal obligation, providers of online services will have to make efforts towards building more compliant and efficient processes and systems.
For more information on new EU digital copyrights provisions, please contact info@tremau.com.
Tremau Policy Research Team
