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By Chris Cooke | Published on Monday 7 June 2021
Today is the deadline for EU member states to implement the 2019 European Copyright Directive into their national laws, including the often controversial safe harbour reforming article seventeen. Yeah, good luck with that everybody!
On Friday, the European Commission published guidance to help with that implementation process. You know, entirely too late to help with the implementation process. But hey, this guidance is also meant to facilitate cooperation between affected user-upload platforms and copyright owners, so not entirely pointless. Maybe.
Article seventeen, of course, amends the copyright safe harbour across the EU. That’s the principle – which comes from an E-Commerce Directive in Europe – that limits the liabilities of internet companies whose users use their networks and servers to infringe copyright. The article seventeen reforms apply specifically to user-upload platforms, which now have new obligations to meet if they want to continue to avoid liability.
There has been plenty of debate across the EU since the Copyright Directive was passed at a European level as to exactly how article seventeen should be implemented – or transposed – into each country’s national copyright regime.
One big talking point – especially in Germany – is the extent to which measures should be put in place to ensure that user-uploaded content which makes use of copyright material – but which is covered by a so called copyright exception – is not blocked by the kind of automated filters user-upload platforms will probably need to operate to comply with their new obligations.
The formal guidance on article seventeen, although not legally binding, was meant to provide some extra detail or clarity on those aspects of the directive which talk about things like “best efforts” and “effective and expeditious complaint and redress mechanisms” and the need to respect “exceptions”, which are always hard to define in tangible terms.
When the European Commission published the first draft of its guidance last year, the music industry – as the biggest advocate of safe harbour reform – expressed concern that the guidelines were watering down what had been agreed in the European Parliament and EU Council when the directive was being negotiated.
An assortment of trade bodies signed an open letter that stated: “By interpreting article seventeen in a manner that is contrary to the intent of the EU legislature and the EU copyright acquis, the proposed guidance amounts to an attempt to rewrite the directive and amend EU copyright law without due legislative process”.
It seems that the final draft is not as bad as the music industry feared, although there is still plenty of cause for concern. GESAC – the pan-European group for song right collecting societies – says the guidance has some “useful clarifications on some important aspects of the implementation”, but that it nevertheless “risks creating uncertainty and ambiguity by going beyond the scope of the directive, which makes the exercise an overall missed opportunity”.
It goes on: “The main purpose of article seventeen is to foster licensing, so as to allow for wide access to protected works while ensuring fair remuneration for the creators of those works. Authors’ societies that GESAC represents deliver licences for a wide repertoire, and as such are key players in the market and for consumers. The guidance usefully makes it clear that seeking a licence from [the societies] is a ‘basic’ requirement for all [user-upload platforms] under their licensing obligation, and refusing such collective licences would be an infringement leading to their liability”.
However, “the guidance deviates from the language of the directive and creates new provisions in several instances, leading to uncertainty and possible weakening of the rights of creators in a very unhelpful manner”, it adds.
It then notes in particular a paragraph that talks about how, when digital platforms facilitate the communication or making available of copyright material, they also inevitably exploit the reproduction element of the copyright too, even though that’s not actually mentioned in article seventeen.
“The guidance text suggests an exception for [the] reproduction right for the [user-upload platforms] making protected works available”, GESAC goes on, “whereas this is mentioned nowhere in the directive. If anything, article seventeen would require licensing all relevant rights fully, as the [user-upload sites] can no longer benefit from the safe harbour regime of the E-Commerce Directive”.
“GESAC has always advocated for pragmatic solutions to address legitimate interests of consumers, while keeping the liability of the [user-upload platforms] intact. We unfortunately note that by making elaborations going beyond article seventeen, the guidance risks being a pretext for further circumvention attempts of the concerned platforms that seek every way possible to avoid their liability”.
Given those concerns, and the fact most EU member states are already quite far along in implementing the directive – or have already done so – GESAC adds that it “considers that keeping the directive’s text as the main guiding document is the safest and most appropriate approach for transposition”.
This is a viewpoint echoed by IMPALA, the pan-European trade body for the independent music community, which also stresses the non-binding nature of the guidance document
The organisation’s Executive Chair Helen Smith says: “We’re still in the process of analysing the text, especially as certain aspects clearly go beyond the text of article seventeen. In any event, the job of member states is to implement the text of the directive itself and the EC itself confirms the non-binding nature of the guidance. The directive reflects the balance that three years of negotiations produced. European recovery depends on strong copyright rules implemented on time”.
As for the implementation of article seventeen so far – and the impact of those aforementioned debates in Germany – IMPALA adds: “The Netherlands, Hungary and France, the first three member states to adopt the directive, have shown the way by sticking closely to the text of the directive. Germany, on the other hand, has provided an example of what should not be done as their legislation deviates from the directive and creates new exceptions and potential loopholes”.
The need for EU members to stick as closely as possible to the original directive is also GESAC’s key message. As other countries finish implementing the directive – and as the new laws properly come into effect – member states, it says, must be wary of “possible misinterpretations leading to unwarranted new liability safe harbours, that would be totally against the core objective of article seventeen”.