DSM Copyright Directive: a new leak reveals there is still a long way to go

Hogan Lovells

The provisions of the Copyright Directive (COM(2016)593) are currently being discussed between the Council, the Parliament and the Commission in order to reach a compromise wording. Though these talks are generally strictly confidential, some working documents occasionally find their way out. Here is a summary of the lessons we can learn from the latest document that has leaked.

The story so far

After months of tense debates, both the Council and the Parliament could each find a majority on the wording of the draft directive (read our blog posts here and here). The current stage of the process, as we reported, is the interinstitutional negotiations or so-called trilogue, which takes place behind closed doors between representatives of the Parliament and the Council, with the Commission intervening in a mediating role.

The first trilogue sessions took place on 2 and 25 October 2018, where some uncontroversial issues could be agreed upon, following the well-known “step-by-step strategy“. Articles 11 and 13, however, were left untouched at this initial stage.

The time has now come to make some progress onArticles 11 and 13, and the (Austrian) Council Presidency therefore drafted this working document as a compromise proposal between the positions of the Parliament and the Council.

Article 11

The proposal limits the application of the new neighbouring right to press publishers established within the EU, and includes news agencies. The protection should be exclusive to journalistic publications and “should not extend to mere facts reported in press publications“, nor to insubstantial parts (the concrete determination of which is left to the Member States). Hyperlinks are also excluded from the scope of application of this new right, as long as they do not constitute an act of communication to the public (see the CJEU case-law, Case C-160/15 (GS Media)).

The suggested expiration date for the right is one year, which alignswith the Council’s position. One last noteworthy evolution is the possibility left for press publishers to grant free licenses for the online use of their publication.

Article 13

The Presidency proposal essentially replicates the Council position:

Online content sharing service providers (OCSSP) are performing an act of communication to the public or making available to the public when they give access to copyright-protected content uploaded by their users. They shall not be eligible for the exemption of liability provided under Article 14 of the Directive 2000/31. OCSSPs shall therefore acquire a licence from the right holders.

The Presidency then sketched out two different wordings, although identical in their application.

If they do not have a license, OCSSPs are liable for the content uploaded by their users, except if

  • The OCSSPs cooperate with the right-holders,
  • They put in place effective and proportionate measures to prevent the availability of copyright-protected works on their platform, including technological measures.

The notice and take-down system would be acting as recourse, and OCSSPs shall furnish the right holders with relevant information.

Next steps

This is the summary of the draft circulated by the Council Presidency among the representatives of the Member States on 15 November. As of today, we do not know how it was greeted within the Council. The next event in the schedule will be a trilogue meeting on 26 November. A last session was initially scheduled on 13 December, but at least two additional trilogue discussions will take place: on 3 December, and on 14 December.

These four meetings within three weeks, as compared to the three that took place during the last two and half months, shows that things are moving, and the institutions want to get to terms with this piece of legislation. This will be necessary to overcome the Institutions’ hurdles, as the Parliament could very well turn down a piece of legislation referring to upload filters, and the majority supporting the text within the Council is getting thinner. These facts could prove crucial going forward in the negotiations.

As always, we will keep you posted about the upcoming developments. Stay tuned!

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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