Following the European Parliament’s March 26 vote to pass the biggest update to European copyright law since 2001, the Council approved the EU Copyright Directive on April 15. This move starts the clock on a 24-month implementation period for member states. The difficulty of updating national laws to align with the directive will vary based on the degree of similarity with member states’ current copyright laws, as well as cultural compatibility with its provisions.
Julia Reda, MEP for the European Pirate Party, posted member states’ votes on Twitter, showing that Italy, Luxembourg, the Netherlands, Poland, Finland and Sweden voted against the directive outright, while Belgium, Estonia and Slovenia abstained. She comments that the numbers are “not enough for a blocking minority,” but they demonstrate that the directive has “far from broad support”.
Steve Baldwin, associate at Kirkland & Ellis in London, attributes the strong opposition to “significant cultural differences” between member states. For example, Sweden voted against the directive, which Baldwin says can be explained by the huge popularity of its Pirate Party. It advocates for the non-commercial sharing of copyrighted material, as well as an extreme reduction in copyright term, which is currently 70 years after the creator’s death. “While the directive has now passed,” says Baldwin, “it’s safe to say it is not a popular decision across the EU”.
The main points of contention are Articles 11 and 13, as Managing IP reported when the Parliament voted in favour of the copyright update, 348 to 274 (36 MEPs abstained). Article 11 requires platforms to pay publishers when they display protected content, while Article 13 holds platforms responsible for monitoring and taking down unauthorised music and videos uploaded by users.
There is an exception to Article 11 which allows the legitimate use of snippets of content such as gifs or memes, and exceptions to Article 13 which protect smaller (turnover under €10 million) and newer (under three years old) platforms from liability. Still, some argue that it’s not enough to remain competitive.
Since the directive has been approved by both the Parliament and the Council, those still engaged in the fight will shift their attention from lobbying in Brussels to litigating in the courts of each member state. One issue that litigants could exploit is the directive’s inconsistency with the EU’s existing e-commerce laws, which prohibit member states from requiring platforms to monitor for IP infringement; this is precisely what Article 13 of the directive does.
In the meantime, copyright stakeholders will be working to obtain maximum value from use of their content. Simon Bourn, head of IP and litigation at PRS for Music, previously told Managing IP: "As existing licences with user-upload platforms expire, we will negotiate and renew licence agreements, either directly or via our licensing partners, ensuring full value is obtained for the use that is made."
The directive’s rapporteur Axel Voss acknowledges that internet freedom advocates are frustrated, but stated in a press conference following the directive’s approval: “However gloomy a picture of this legislation has been painted, it’s all an exaggeration. We’ve created a solid basis to ensure that copyright rules and digital work can go hand in hand”.
Despite the concerns, Voss insisted that the directive represents considerable progress because “there is far greater legal certainty as to what is and isn’t allowed, and individuals are no longer liable”.
