The European Union’s legislature is currently modernising the European legal framework in order to transform the EU into a ‘Digital Single Market’. In this context, two new directives have recently been adopted: (i) a new Copyright Directive, aimed at adapting the existing copyright framework to the digital environment, and (ii) the Directive on television and radio programmes, aimed at facilitating access to online TV and radio content across borders.
In view of the rapid technological developments and new business models that are emerging, the new Copyright Directive seeks to strike a fair balance between the rights and interests of rights holders, on the one hand, and the interests of users on the other. This balance does not seem easy to achieve, however. In particular, two provisions of the Directive were the subject of much debate:
- Article 15 creates a new right for EU-based press publishers in respect of the online use of their publications by information society service providers (the so-called “press publishers’ right”). Many people do indeed access their news through search engines and news aggregator platforms, leading to significant difficulties for publishers to monetise their content. The new right aims to enhance press publishers’ chances of obtaining fair remuneration for the online use of their articles. Compared to the EU Commission’s initial proposal, however, Article 15 is substantially watered down and excludes from its scope (i) private or non-commercial use, (ii) hyperlinking and (iii) the use of individual words or “very short extracts” of press publications.
- Article 17, the so-called “value gap provision”, addresses the liability of online content-sharing service providers for copyright-infringing material shared by their users. Platforms such as YouTube or Facebook will have to obtain the consent of rights holders in order to communicate protected works to the public, for instance by concluding licensing agreements. If no authorisation is granted, the online platform will be liable for copyright infringements that result from their users’ uploading of protected content, unless it demonstrates that it has (i) made best efforts to obtain an authorisation, (ii) made best efforts to ensure the unavailability of specific content for which rights holders have provided the necessary information and (iii) acted expeditiously to remove or disable access to notified content and made best efforts to prevent its future upload. Critics argue that this will lead to the use of content monitoring software or “upload filters” by online platforms in order to comply with the requirements, which may result in the filtering out of legitimate content and, as such, a form of online censorship. Not surprisingly, the European Commission has been tasked with organising stakeholder dialogues to discuss best practices for cooperation between platforms and rights holders and to issue guidance for the application of Article 17.
The principal aim of the Directive on television and radio programmes is to enhance cross-border access to TV and radio programmes by facilitating the clearance of rights (i) for the provision of online services by broadcasters (for instance simulcasting or catch-up services), and (ii) for the retransmission of programmes. The Directive complements the existing Satellite and Cable Directive (Directive 93/83/EEC), which facilitates cross-border satellite broadcasting and retransmission by cable.
The new Directive establishes the principle of the “country of origin”, meaning that the rights required to make certain programmes available online are to be cleared only for the broadcaster’s country of principal establishment, which will facilitate the licensing of rights. The licence fee will have to take into account aspects such as the duration of online availability, the audience and the language versions provided.
Also, the system of mandatory collective management (currently applicable to cable retransmissions only) has been extended to retransmission services provided through other means, such as Internet Protocol television (IPTV), satellite, digital terrestrial and online technologies. This will make it easier for retransmission operators to obtain the authorisations required to retransmit radio and TV channels originating in other Member States. The rules on mandatory collective management do not apply to rights in retransmissions that are held by broadcasters.
Finally, the new Directive clarifies that, when broadcasters transmit their programme-carrying signals by direct injection exclusively to distributors, both the broadcaster and the distributor participate in a single act of communication to the public in respect of which they must obtain authorisation from rights holders.
References:
- Directive (EU) 2019/… of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC;
- Directive (EU) 2019/… of the European Parliament and of the Council laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC;
Please contact Karel Janssens for more information on copyright and media law or on developments within the EU Digital Single Market.