In September 2018, the European Union Parliament adopted a new revised draft of the directive on Copyright in the Digital Market. The proposed EU legislation includes some significant changes to the copyright regime and a couple of surprise additions introduced in the last minute by the EU Parliament.
Ron Moscona is a partner at the international law firm Dorsey & Whitney in its London office. He is qualified as a solicitor-advocate and acts for clients before the UK courts primarily in the enforcement and protection of intellectual property rights, privacy, and cybersecurity.
Of the news he tells Digital Journal: “These issues will spark much debate in the months to come particularly surrounding the likely impact of these reforms on the way content is shared, used, disseminated and published on the Internet.”
Moscona also raises issues relating to the legislative process: “The adoption of the new text by the EU Parliament is a significant step in the legislation process although there is yet a long way forward. Firstly, the draft legislation itself will now have to be considered by the member states of the European Union.”
He adds: “This may result in many further changes to the text, possibly significant ones, before the legislation is passed into law. Then, once the directive becomes law, it would have to be implemented through domestic legislation in each member states of the EU. Only then will the full practical impact of some of the provisions will become apparent.”
In terms of what the legislation will mean, Moscona explains: “The proposed legislation covers several different issues. On the one hand, it introduces modifications to the list of exceptions to copyright protection particularly in the areas of education and research. Data mining, premised on access to large amounts of copyright materials, is a specific activity that the legislation seeks to enable by creating special new exceptions to copyright protection.”
He goes on to distill this down to the impact on EU citizens: “But the main emphasis in the draft directive is on reinforcing copyright and helping rightholders protect their works against unauthorized exploitation, particularly in the digital space.”
There are also implications for technology companies: “Some argue (particularly in the context of Article 13 that deals with the prevention of infringements by content sharing platforms) that this will translate into forcing technology platforms to apply filters and censorship in order to proactively prevent infringing content being shared by their users, which internet activists argue would stifle free speech.”
However, the legislation is, according to Moscona, far much more nuanced as it “clearly seeks to put in place safeguards against over-protection. Further, the text adopted by the EU Parliament sets out high level ideas that would have to be broken down into practical legal rules. This will only happen when the directive is implemented by EU member states. It is very difficult at this stage to predict how some of the principles laid out in the draft directive will be implemented and what impact they will end up having on the way content is used on the Internet”.
In terms of the impact upon publishers, the draft directive also seeks to create new rightholders. Here Moscona explains: “Publishers will have their own independent rights equivalent to those of authors, for a limited protection period of 5 years. This is intended to ensure that publishers can claim a fair share of the benefit from the dissemination of their publications by third parties through the internet.”
This means: “The revised text of the directive emphasizes in this context that copyright protection will not prevent the free use of hyperlinks that lead to protected content published online. However, the new rights of publishers may force search engines and other digital players to pay royalties, for example, when published content comes up in search results.”
There are also important implications for the protection of authors who grant exclusive licences to publishers. By this, Moscona expalins: “According to the new text, authors who license their works to publishers will have statutory rights to receive annual detailed reports regarding the exploitation of their works and will have the right the right to revoke exclusive licences granted to publishers if the work is not properly exploited. These ideas were only recently adopted into law in Germany.”
Finally Moscona explains there still remains a long way to go in terms of the legal process: “The new draft Copyright in the Digital Market directive opens up many questions and may indicate significant reforms to come. The legislation, however, is still a long way from being the final product.”