26.07.2018
One of the most controversial developments in European copyright law is the planned Directive on Copyright in the Digital Single Market (UDBM Directive)[1], which was already proposed by the European Commission in September 2016 and, according to current information, is to be put to a vote in the European Parliament in a revised form in autumn 2018, after such a vote failed in July 2018.
Several aspects of this reform plan have led to an outcry from interest groups. In particular, the planned "upload filters" for online platforms such as YouTube and the ancillary copyright for press publishers have been controversially discussed for months.
Overall, the directive, in its various drafts, contains numerous changes affecting different areas of copyright law:
- Free use of works for scientific text and data mining, certain teaching activities, preservation of cultural assets by appropriate institutions and in relation to out-of-print works
- Opportunities for Member States to extend the powers of collecting societies
- Negotiation mechanism to facilitate the licensing of audiovisual works for video on demand services
- Ancillary copyright for press publishers concerning certain online uses, including corresponding remuneration
- Related rights for sports event organisers
- Regulations relating to “Online Content Sharing Service Providers” (OCSSP) such as YouTube, including obligations for platforms to implement upload filters and conclude licensing agreements with rights holders
- New copyright contract law regulations
It is currently not possible to make a reliable estimate as to which of these proposed changes will actually become applicable law in autumn 2018. The failure of the last proposal by the Committee on Justice in the European Parliament is likely to be primarily due to disagreement over the obligations for video platforms to implement upload filters and conclude licensing agreements with rights holders.
Critics such as the German Minister of State for Digital Affairs Dorothee Bär see the regulations as an unreasonable obstacle for European start-ups that are unable to implement the new requirements in a legally compliant manner.[2]
The experience with the introduction of an ancillary copyright law for press publishers in Germany in 2013 is also the basis for criticism of the similarly planned new European ancillary copyright law, with this criticism highlighting the burden on smaller companies and the restriction of freedom of expression as well as the lack of necessity for the regulation, since the products of press publishers already enjoy full copyright protection.
In particular, criticism was made of the German regulation that large search engine operators such as Google were in practice hardly charged with the license fees that they owed due to the use of text extracts and that the regulation was too vague in its scope of application.
The strong influence of German copyright law on European legislation is also evident in other areas of the directive. For example, Article 15 of the current draft of the Justice Committee (which provides for a claim for authors and performers to additional appropriate remuneration from a licensing agreement if the contractually agreed remuneration is in a significant imbalance with the profits generated through use) essentially corresponds in content to the German "bestseller paragraph" (Section 32a of the German Copyright Act).
The draft of the European Parliament's Justice Committee also proposed a new ancillary copyright for sports event organisers, which would grant them the exclusive right to record a sports event and make it publicly available, but (as far as can be seen) this was hardly discussed due to the failure of the proposal in the plenary session.
It will be interesting to see which of these proposed provisions will ultimately become applicable law.
[1] Proposal for a Directive of the European Parliament and of the Council on Copyright in the Digital Single Market, COM (2016) 593.
[2] Letter from the politicians for digitalization of CDU/CSU on the copyright law reform, Dorothee Bär et al.