10.06.2019
DISCUSSION CONTINUES
As of 6 June 2019, the Directive on copyright and related rights in the digital single market (Directive (EU) 2019/790), published on 17 May 2019,[1] entered into force. Member States now have two years to implement the requirements of this Directive (for the contents of which see also our communication on this subject from July 2018 https://lsr.at/de/news/newsdetails/dkl/vorschlag-fuer-eine-richtlinie-betreffend-urheberrecht-im-digitalen-binnenmarkt/) into national law.
The discussion on certain provisions of the Directive, in particular Article 17, the “Online content sharing service providers“ (platforms such as YouTube) to a certain extent obliges them to ensure that the copyright usage rights of other infringing content are not available on such platforms (commonly discussed in the discussion under the keyword “upload filter”), continues. Poland has announced that it has already filed an action for annulment against the directive with the ECJ.[2]
Many details in the implementation and application of Article 17 are unclear. For example, it stipulates that its application must not lead to an obligation for general monitoring and stipulates that Member States must ensure that users who upload user-generated content to platforms can rely on certain free uses of the work (for example for the purposes of criticism, review or parody).
Such “free uses of works”, which are regulated under Union law, for example in Directive 2001/29/EC[3] are optional, but have not yet been implemented uniformly in all Member States. For example, the Austrian Copyright Act itself does not provide for any free use of works for the purposes of criticism or parody[4].
Overall, Article 17 of the Directive is a comprehensive, complex and, in some details, unclear provision which will require further intensive consideration in the legal policy and legal scholarly discourse in the coming months and years.
In practice, great hopes are placed in the ‘dialogues’ between different stakeholders to be held by the European Commission in cooperation with the Member States in accordance with Article 17(10) of the Directive.
The Commission is obliged, taking into account the results of these dialogues, to publish guidelines on the application of Article 17, in particular to strike a balance between conflicting fundamental rights, such as the fundamental right to freedom of expression of users of online platforms (who produce user-generated content) and the fundamental right to ownership of the rights holders of copyrighted works included in this content, and also to ensure that users can effectively make use of copyright-related "free uses" of works when creating and publishing user-generated content.
The Commission plans to start the first workshops in June 2019. A broad alliance of civil society organisations and associations has already called on the Commission in an open letter to ensure, in the course of this process, “that the fears regarding automated upload filters will not be realized."[5] It will be interesting to see what happens.
[1] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/)/EC and 2001/29/EC.
[2] https://www.zeit.de/digital/2019-05/eu-urheberrecht-polen-eugh-klage-zensur-mateusz-morawiecki
[3] Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society.
[4] See also OGH 13.07.2010, 4 Ob 66/10z (Favorite Captain); Noll, Parody and Variation, MR 2006, 196.
[5] https://edri.org/ngos-call-to-ensure-fundamental-rights-in-copyright-implementation/