1. The European Parliament will soon vote on the new copyright rules* at EU level – what are they about?
The Copyright Directive* is a new piece of EU legislation which will bring the copyright rules in Europe up to date with the online world. Once adopted at EU level, it will need to be transposed by the Member States into their national legal systems.
It aims to create a comprehensive framework, which will benefit a wide range of players acting in the digital environment: internet users, artists, journalists and the press, film and music producers, online services, libraries, researchers, museums and universities, among many others.
Once adopted and transposed, the new Copyright Directive* will:
- Provide fairer rules for a better-functioning copyright marketplace, namely introducing:
- a new right for press publishers to be remunerated for the use of newspapers and magazines by online service providers;
- new rules which will reinforce the position of rightholders, such as music and film producers as well as collecting societies acting on their behalf, to negotiate and be remunerated for the online exploitation of their content by user-uploaded content platforms; and
- new rules which will ensure fair remuneration for individual creators such as writers, journalists, musicians and actors.
- Ensure more cross-border and online access to copyright-protected content for citizens: the Directive to be adopted will increase the availability of audiovisual works on video-on-demand platforms, facilitate the digitisation and dissemination of works that are out-of-commerce and ensure that copies of works of art, that are in the public domain, can be displayed online freely and with full legal certainty.
- Offer wider opportunities to use copyright-protected material for education, research and preservation of cultural heritage: the copyright exceptions allowing these uses have been modernised and adapted to the technological changes, to permit digital and cross-border uses.
- Enhance the data economy: the new rules on text and data mining will give a boost to European research and foster the development of data analytics and Artificial Intelligence in Europe.
Digital technologies have transformed the way we produce, distribute and access creative content. However, essential parts of the current EU copyright framework date back to 2001 when much of today’s digital environment did not exist. This, in turn, means that the current copyright rules are not always adapted to that digital landscape.
In particular, the existing framework provides for copyright exceptions in the areas of education, research and preservation, but digital uses were not anticipated at the time. As a consequence, the possibilities for educational establishments, research institutions or libraries to benefit from the potential of new technologies, in particular across borders, are limited.
In addition, problems have emerged in recent years in relation to the distribution of value in the online environment, which the Copyright Directive* addresses. Specifically, certain online services, that allow users to upload copyright-protected content, have gained an essential role in distributing copyright content. At the same time, the creators of that content do not always have the opportunity to decide on or be remunerated for the use of their content by such services.
The Copyright Directive* does not limit online freedom, nor does it target users and their behaviour online, including the possibility for them to upload and share content. Freedom of expression is one of the fundamental rights recognised by the European Union, as is the protection of intellectual property.
To take one example: the new rules* applicable to the use of press publications online will only apply to commercial services such as news aggregators, not to users. This means that internet users will continue to be able to share such content on social media and link to online newspapers.
The new provisions* on user-uploaded platforms will facilitate the conclusion of licences between commercial players and will contribute to improve the remuneration of creators. These rules do not target internet users. Users will benefit from a wide range of common rules applicable to them everywhere in the EU, which will safeguard their freedom of expression when they upload copyrighted content on online platforms. They will also benefit from a robust redress and complaints mechanism to challenge unjustified removal of their content from online platforms.
No. The text of the political agreement does not impose any upload filters nor does it require user-uploaded platforms to apply any specific technology to recognise illegal content.
Under the new rules*, certain online platforms will be required to conclude licensing agreements with rightholders - for example, music or film producers - for the use of music, videos or other copyright protected content. If licences are not concluded, these platforms will have to make their best efforts to ensure that content not authorised by the right holders is not available on their website. The “best effort” obligation does not prescribe any specific means or technology.
Also, it will only apply in cases where the online platforms covered by the Directive* and the rightholders have not concluded licensing agreements for the use of copyright protected content and only for specific content identified by rightholders. The Directive* explicitly prohibits Member States from imposing on online platforms a general monitoring obligation of the content uploaded by the users.
5. Will the Copyright Directive* prevent users from expressing themselves on internet in the same way as now? Will memes and GIFs be banned?
No. On the contrary, according to the political agreement, uploading memes and other content generated by users for purposes of quotation, criticism, review, caricature, parody and pastiche (like GIFs or similar) will be specifically allowed. Users will be able to continue to upload such content online, but the new rules* will bring clarity in this respect and will apply in all EU Member States.
Until now, copyright exceptions allowing these uses were only optional and Member States were free not to implement them. Under the new Copyright Directive*, this will no longer be the case: once the Directive* is approved, Member States will be obliged to allow these uses. This is a particularly important step for the freedom of expression online.
6. How will the new Copyright rules* tackle the discrepancy between the remuneration of creators and that of certain online platforms (the so-called 'value gap')?
One of the objectives of the Directive* is to make it easier for creators and rightholders to negotiate the conditions of the exploitation of their work online and be remunerated for the online use of their content by certain platforms based on the “user-uploaded-content” model.
In fact, the new Copyright rules* will require these online platforms to conclude licences with rightholders for the use of copyright-protected content. If a licence is not concluded (for example because rightholders do not wish to do so), the online platforms will have to make their best efforts to ensure that content which is not authorised by the right holders and for which they have provided the platforms with relevant and necessary information, is unavailable. Moreover, upon receiving a notification from rightholders, they will have to remove specific unauthorised content from their websites.
Finally, not to put excessive burden on small and young platforms, the agreed text of the new Copyright Directive* provides a specific regime for startups and smaller companies, which will be subject to less burdensome rules (see question 9).
The new rules* will provide the users with several safeguards when they upload and share content on user-uploaded platforms. They will make sure that all users, wherever they are in the European Union, can rely on exceptions to copyright which are particularly important for the freedom of expression.
The Directive* will allow the users to use content freely for purposes of quotation, criticism, review, caricature, parody and pastiche. These exceptions are currently optional for Member States.
Under the new rules*, Member States will have to implement those exceptions in their national legal systems. This will ensure a uniform protection of users’ rights and interests across the European Union. Concretely, users will be free to upload and share content online such as memes, GIFs and reviews without any fear of infringing copyright in any of the Member States.
Thanks to the new Directive*, users will automatically be covered by licences concluded between rightholders and online platforms. As a consequence, they will be able to share and use online any content, such as songs and music videos, covered by these licences.
Furthermore, the new Copyright Directive* will provide for a robust complaint and redress mechanism, which will allow users to contest the unjustified removal of their content from online platforms. Member States will also be required to set up alternative dispute resolution schemes, with specific safeguards to ensure a fast and efficient procedure. And this procedure will not affect users’ rights to go to national courts to assert their rights, as explicitly laid down by the new rules.
Finally, the Directive* recalls that Member States shall not impose a general monitoring obligation on platforms and that they will have to implement the new rules in full compliance with European data protection legislation.
So, the new copyright rules* will not limit the users' rights or creativity. To the contrary: they will contribute to stimulate diverse and creative content by giving more legal certainty to users and by increasing the remuneration of creators and of those investing in creative content.
The new copyright rules* on user-uploaded platforms will cover online services that store and give public access to a large number of works for profit-making purposes.
Some online services are explicitly excluded from the scope of the Directive* to be adopted:
- Not-for profit online encyclopaedias, such as Wikipedia;
- Not-for-profit educational and scientific repositories;
- Open source software developing and sharing platforms, such as GitHub;
- Electronic communication service providers, such as WhatsApp;
- Online marketplaces, such as eBay;
- Business-to-business cloud services and cloud services which allow users to upload content for their own use, such as Dropbox.
According to the new Copyright Directive*, new micro and small platforms will benefit from a lighter regime in cases where there is no authorisation granted by rightholders.
This concerns online platforms that have existed for less than three years and which have a turnover of less than 10 million euros. If they do not conclude a licence with rightholders for the use of copyrighted content, these small companies will only have to act expeditiously to remove the unauthorised works, notified by the rightholders, from their website. However, when the audience of these small companies reaches 5 million unique viewers monthly, they will also have to make their best efforts to ensure that works notified to them by the rightholders do not reappear on their website at a later stage.
10. What will happen to online encyclopaedias (like Wikipedia) that are based on content uploaded by users?
Not-for-profit encyclopaedias, such as Wikipedia, will be specifically excluded from the definition of “online content sharing service providers”, and will therefore not be covered by the new rules* on user-uploaded platforms . So, internet users will continue uploading content on Wikipedia and other similar platforms as they do today.
Other platforms, such as marketplaces, software development and sharing platforms and certain cloud services, are explicitly excluded.
Quality journalism is a key element of any democratic society. The press publishing industry needs a fairer market place and the best possible environment in order to develop innovative business models and continue offering quality content online.
The new Copyright Directive* gives press publishers a new right to strengthen their bargaining position and improve their remuneration when they negotiate the use of their content by online platforms. It is a similar right to the ones already enjoyed by music or film producers. This improved better bargaining position will allow, publishers to negotiate fairer licences for their content. In turn, to make sure that journalists will also benefit economically from the press publishers' right, the Directive* stipulates that they should receive an appropriate share of the revenues resulting from the online uses of press publications.
These rules* will only apply to uses of press publications by online service providers, explicitly excluding uses by individual users. Therefore, the way internet users share press publications will not change. The new rules will also not affect the availability of information online.
The new right granted to press publishers in the Copyright Directive* will give them the possibility to authorise or prohibit online uses of their press publications by platforms. Publishers will be free to set the conditions to authorise the use of their content: they can do it for free or against remuneration, in accordance with their own business models. Any publisher, small or big, who gives free licences for the use of their content will be able to keep doing so.
No, the Directive* will not create a hyperlink tax.
Acts of hyperlinking are explicitly excluded from the scope of the new Directive*, which means that any user will continue to be free to link to any website, including to online newspapers.
No. During the legislative negotiations, the co-legislators have explicitly excluded "individual words and very short extracts" of press publications, in the public debate sometimes also referred to as "snippets", from the scope of the Directive. This means that they can be used without any authorisation and for free. Moreover, the new rules* will only apply to online uses by commercial services, such as news aggregators, and uses of press publications by individual users are explicitly excluded.
The Directive* recognises the essential role that quality journalism plays for democratic and pluralistic societies. Journalists will benefit both from the revenues generated by the new right granted to press publishers, and also from the new provisions on the fair remuneration of authors and performers.
The Directive* makes sure that every journalist will benefit from increased protection across the EU.
In detail, by making it easier for press publisher to negotiate with online platforms and by fostering the visibility of press publications online, the new right granted to press publishers* will have a positive impact on journalists. The new rules also ensure that journalists will receive an appropriate share of the revenues generated by the new press publishers’ right. In addition, journalists will also be covered by the principle of appropriate and proportionate remuneration and by other rules protecting individual creators; they will notably receive regular information on the exploitation on their press articles (transparency obligations, see question 17), and be entitled to an additional share of benefits if their articles have achieved an unexpected success (contract adjustment mechanism, see question 18).
The new Copyright Directive* aims to strengthen the position of individual creators - such as actors, musicians, journalists and writers - when negotiating with their contractual partners (publishers, producers) in order to get fair remuneration for the exploitation of their works and performances. It contains five different measures designed to strengthen the position of authors and performers that will apply for the first time across the EU:
- The principle of appropriate and proportionate remuneration for creators
- A transparency obligation to help creators to have access to more information about the exploitation of their works and performances
- A contract adjustment mechanism to allow creators obtaining a fair share when the remuneration originally agreed becomes disproportionately low compared to the success of their work or performance
- A mechanism for the revocation of rights allowing creators to take back their rights when their works are not being exploited
- A dispute resolution procedure for authors and performers
17. How will the new copyright rules* strike a fairer balance in the relationships between creators and their contractual partners?
With the new rules*, the entities (like film and music producers or publishers) to which the creators (like actors, musicians, journalists and writers) have assigned their rights, will have to share with the creators information on the use of their works, in particular with regard to the revenues generated. The creators will be better informed on the exploitation of their works and will be in a better position to assess their economic value and obtain a fairer remuneration for it.
For example, thanks to the new rules*, a screenwriter will receive regular information from the film producer on the exploitation of the film he or she contributed to, including on the generated revenues. If the film achieves unexpected success and generates much more revenues than initially expected, the information obtained this way can be the basis for a review of the remuneration for the screenwriter through a contract adjustment mechanism (see: question 18).
The contract adjustment mechanism (or "better-seller clause") will allow a creator, for example a writer or a musician whose work or performance has achieved an unexpected success, to get an additional share of this success if the originally agreed remuneration is clearly disproportionate to the generated revenues. This mechanism has existed in several Member States for a long time and it is now extended to the whole European Union. It will not interfere with contractual freedom, as its purpose is to restore the original balance of contracts in the interest of creators. It is meant to apply in exceptional situations in order to ensure fairness.
Thanks to this mechanism, a screenwriter will also be able to request additional remuneration from the producer where the agreed remuneration turns out to be disproportionately low compared to the revenues generated by the film.
Copyrighted works are created to be used and shared with an audience. Any work that is not exploited is a loss for European culture. However, sometimes works get locked up in long-term contracts and creators have no way to renegotiate even if there is no exploitation.
The revocation mechanism will allow creators to take back their rights in case their works are not being exploited at all. Sector-specific basis to make sure that the legitimate interests of producers, publishers and investors are also considered.
For example, the revocation mechanism will only be able to be used a reasonable time after the licensing agreement has been concluded; creators will also be obliged to notify their producers or publishers of their intention to revoke the rights within a reasonable time frame. This is to ensure that the producer or publisher has the opportunity to start exploiting the work if they so desire.
Exceptions or limitations to an exclusive right allow the beneficiary of the exception – an individual or an institution – to use protected content without the prior authorisation from right holders. Exceptions and limitations exist to facilitate the use of copyrighted content in certain circumstances that are particularly relevant for public interest objectives such as education, research, and culture. The existing EU copyright rules, dating back to the early 2000s, allow Member States to introduce copyright exceptions in these areas, without obliging them to do so.
The new Directive* will bring the EU framework on exceptions up to speed with digital uses in certain areas like education, research and cultural heritage. It will oblige Member States to introduce five mandatory exceptions for:
- Text and data mining (TDM) for research purposes;
- A general TDM exception going beyond the area of research;
- Teaching purposes;
- Preservation of cultural heritage.
- Use of out-of-commerce work in specific cases where licenses for these uses cannot be concluded because no collective management organisation exists that can issue them.
These new exceptions will open up the possibilities that digital technologies offer to research, education and heritage preservation and dissemination, also taking into account online and cross-border uses of copyright-protected material.
The Directive* will introduce a new exception for text and data mining for scientific research purposes and provide more legal certainty to researchers. Text and data mining is an automated process which allows information to be gathered through the high speed machine reading of massive amounts of data and texts. The new rules* will allow researchers to apply this technology on large numbers of scientific journals that their research organisations have subscribed to, with no need to ask for authorisation for text and data mining purposes. So, the new Directive* will give a boost to top notch European research with the potential of facilitating the discovery of cures for diseases like cancer or genetic and rare diseases.
The Directive* will contain a second, more general exception for Text and Data Mining, also mandatory for Member States to implement in their laws, going beyond research. The provision will apply to all beneficiaries for content to which they have lawful access, including content publicly available online. The new provision will cover, for example, data analytics carried out on content over the internet for the purposes of market research, machine learning and investigative journalism, etc. It will foster the development of data analytics and artificial intelligence in the EU.
The new teaching exception will cover digital uses of copyright-protected content for the purpose of illustration for teaching. For example, this will ensure that educational establishments (e.g. universities, schools) can make available teaching material or online courses to distance students in other Member States through their secure electronic environment, e.g. a university's intranet or a school's virtual learning environment.
Yes, on the one hand the new rules* will allow libraries and other cultural heritage institutions, like archives, libraries or museums, to make copies of EU cultural heritage protected by copyright and related rights to preserve it, using modern digital techniques.
They will also make it easier for cultural heritage institutions to conclude licences with collecting societies, which cover all the out-of-commerce works in their collections. This will significantly facilitate the use of works that are no longer commercially available while ensuring that the rights of rightholders are fully safeguarded. It will make it possible for cultural heritage institutions to digitise and make available their collections of out-of-commerce works for the benefit of European culture and of all citizens.
This mechanism is complemented in the text of the political agreement by an exception that will apply in specific cases when no collective management organisation exists that can licence the use of out-of-commerce works to cultural heritage institutions.
When a work of art is no longer protected by copyright, it falls into what the legal terminology calls “public domain”. In such cases, anyone should be free to make, use and share copies of that work, be it a photo, an old painting or a statue. However, this is not currently always the case, as some Member States provide copyright protection to copies of those works of art.
The new Directive* will make sure that all users are able to disseminate online with full legal certainty copies of works of art that are in the public domain. For instance, anybody will be able to copy, use and share online photos of paintings, sculptures and works of art in the public domain available on the web and reuse them, including for commercial purposes or to upload them in Wikipedia.
26. How will the new copyright rules* foster the availability of EU audiovisual works on video-on-demand platforms?
Despite the growing popularity of on-demand services (like Netflix, Amazon Video, Universcine, Filmin, Maxdome, ChiliTV) relatively few EU audiovisual works are available on video-on-demand (VoD) platforms. The negotiation mechanism will consist of a mediator or neutral body that will help to reach contractual agreements and unblock difficulties related to the licensing of rights to make films and series available on VoD platforms. More licenses means that more European audiovisual works will be available in VoD platforms. The impact will also be positive on the type and variety of works made available on VoD platforms.
A preliminary political agreement on the text of the new Copyright Directive was reached between negotiators from the three institutions (European Parliament, the Council of the European Union which represents EU Member States, and the European Commission) on 13 February 2019.
This text will have to be formally approved by the European Parliament and by the Council in order to become legally binding. A final vote in the plenary of the Parliament is expected to take place by the end of March 2019. After the adoption, Member States will have two years to pass the Directive’s rules in their national law.