Long Read : Final stretch for the Digital Single Market Directive29 March 2019
by Barbara Stratton,
Chair, EBLIDA Expert Group on Information Law
On 26th March 2019, the Plenary sitting of the European Parliament adopted in a final vote the consolidated text (with most Articles renumbered) of the Directive on Copyright in the Digital Single Market including the revisions and compromisesthat had been agreed by the Parliament, Council and Commission negotiators in trilogue talks and subsequently adopted by the Legal Affairs Committee (JURI).
It was an unhappy day for the internet because despite huge opposition from outside the EU institutions, Article 11 introduces a new two-year neighbouring right for news publishers, and Article 13 in effect brings in de facto copyright enforcement by algorithms on uploads by users of for-profit publicly accessible internet platforms. These Articles, now renumbered Articles 15 & 17 respectively, were adopted, albeit somewhat changed from the Commission’s original proposals. The outcome of the other Articles though, was pretty good for libraries and research institutions.
As librarians and information professionals, our professional ethics require us to uphold the human rights of freedom of access to information and freedom of expression. EBLIDA and its pan-European and international partners were thus quite concerned about these two very controversial Articles and had campaigned with others for them to be dropped from the Directive. Our concerns were that Article 11 (now 15) may adversely affect the future of circulation and re-use of recent online news information by and within organisations of all types, including libraries and other non-profit information services and that Article 13 (now 17) risks curtailing freedom of expression on the internet due to automated surveillance of platform user uploads.
Strong opposition to both Articles came also from 169 intellectual property academics and from 240 European small internet businesses as well as a great many European and international digital rights NGOs. Additionally, Article 13 (now 17) was criticised by David Kaye, UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression and 70 internet luminaries including Sir Tim Berners-Lee, inventor of the World Wide Web.
However, anticipating the survival of these two Articles, EBLIDA and its negotiating partners successfully achieved two important carve-outs that will help libraries and the dissemination of research outputs:
- Article 11 (now 15) - the exclusion of “periodicals that are published for scientific or academic purposes, such as scientific journals” from the Article 2 definition of “press publication”; and
- Article 13 (now 17) - the exclusion of “not-for-profit educational and scientific repositories” from the Article 2 definition of “online content-sharing service provider”.
The impact of measures introduced by these two Articles will therefore continue to be monitored by digital rights and library organisations.
Summary of the main Articles
NB. All Articles need to be read together with any accompanying Recitals which set the context in which the Articles are intended to operate. The initial Recitals 1-7 also set out the rationale for the Directive including a discussion on exceptions and limitations.
Article 2 formally defines six terms: “research organisation”, “text and data mining”, “cultural heritage institution”, “press publication”, “information society service” and “online content-sharing service provider”.
NB.These definitions are extremely important and some are elaborated further in the relevant Recitals.
Online cross-border education
- Article 5 (was 4) provides a mandatory exception intended to harmonise and facilitate the use of digital materials for digital and cross-border teaching by recognised educational establishments. Ordinarily, it does not apply to libraries, archives and museums, but it may be possible for them to obtain this status or to benefit when they offer education in partnership with schools, colleges or universities. Member States have the option to provide for fair compensation to be paid to rightholders for this use.
However, there are also optional self-defeating provisions that will do away with harmonisation and limit the benefits for educators. Member States may provide that the exception falls if the rightholder should offer an easily available suitable licence covering the needs of educational establishments, or they may dis-apply the exception from certain types of materials, such as materials “primarily intended for the educational market or sheet music”. Additionally, the accompanying Recital 21 permits Member States to impose limitations on the proportion of a work or other subject matter that can be utilised under this exception.
See also Recitals 19-24.
Libraries, cultural heritage and research institutions
As far as the direct public interest missions and function of libraries, cultural and research institutions are concerned, over the last 2½ years the libraries coordination and negotiating team has done quite well, though everything in legislation is the result of compromise.
Text and Data Mining (TDM)
- Article 3 introduces a mandatory copyright exception for TDM for the purposes of scientific research, but only where it is done by a research organisation or cultural heritage institution for the purposes of scientific research. This exception is protected from contract override.
See also Recitals 8-18.
- Article 4 (was 3a) permits an additional mandatory exception allowing all other users to carry out TDM where they have lawful access to the work and the rightholder has not specifically objected to it in an “appropriate manner”. However, this exception is subject to contractual override as it is not covered by Art. 7.1, and so the rightholder could continue to control or prevent TDM and also could choose to price TDM activities into subscription fees for “lawful access”. However, Art. 7.2 does apply to Art. 4 in relation to Technological Protection Measures (TPMs) (see Article 7 below).
See also Recitals 8-18.
- Article 6 (was 5) creates a mandatory exception for the digital preservation of copyright works held in permanent collections by libraries, archives and museums including (by Recitals 26 & 28) the use of digital preservation networks within a member state or cross-border.
See also Recitals 25-29.
- Articles 8-12 (were 7, 8, 8a, 9, 9a) make provisions for licensing for mass digitisation. and the making available to the public on non-commercial websites of out-of-commerce copyright works (these include orphan works) held in European cultural heritage institutions (defined in Article 2), including libraries, archives and museums. Certain conditions apply, including limitations concerning third country authors and materials.
The measures permit cross-border uses between Member States and provide for necessary publicity measures and stakeholder dialogue. Additionally, a mandatory copyright exception comes into play where there is no collecting society that can offer suitable licences, so this exception is not protected from contract override. Member States also are given the option to introduce Extended Collective Licensing (ECL) schemes under certain conditions.
See also Recitals 30-50.
- Article 14 (was 10b) means that copyright does not subsist in unoriginal facsimile reproductions of out-of-copyright “visual art” (not defined), harmonising across the EU the re-use of most photographs of public domain visual art, such as those produced for catalogues, postcards, posters, prints and most art books. This measure does not apply to photographs or other reproduction copies (e.g., drawings or paintings) of public domain visual art that are original “in the sense that it is the author's own intellectual creation”.
See also Recital 53.
- Article 7 (was 6) importantly provides in Para 1 that Articles 3, 5 & 6 above are protected from contract override. Para 2’s effect is to ensure that with regard to the exceptions provided in Articles 3,4,5 & 6 above, it will now also be possible to use the national procedures set up under the Information Society Directive Art. 6(4) in cases where TPMs placed on works subject to negotiated licences prevent enjoyment of the exceptions these Articles provide.
Protection of press publications concerning online uses
- Article 15 (was 11) is now much changed from the original. It creates a new neighbouring right for “publishers of press publications established in a Member State” for the use of extracts from news articles, excepting only individual words or very short extracts (not defined but note that the 2009 CJEU ruling in Infopaq determined that as few as eleven sequential words could be copyright protected).
NB. Academic journals also known as “scientific journals” are excluded from the Article 2 definition of “press publication”.
The new right does not apply to private non-commercial uses by individuals or hyperlinking. The new right lasts for 2 years from 1st January of the year following publication and it is not retrospective, only applying going forward from the date by which the Directive must be implemented. Organisations are likely to need a licence to use longer extracts from online news platforms and may be charged.
How the new right will fit with the important Quotation exception, established by the Berne Convention 1886 and subsequent international treaties, remains to be seen. There is a risk that in time, the ancillary right concept in this Article could resurface in further legislation concerning other types of online information sources, eroding the Quotation exception.
See also Recitals 54-59.
Use of protected content by online content-sharing service providers
- Article 17 (was 13) has also changed considerably during its passage, but it still introduces new obligations on “online content-sharing service providers” (defined in Article 2) to prevent copyright infringement on platforms where users upload content themselves, by making the platform providers legally liable for any infringements. Platform providers are required to check the copyright status of all user uploaded content and take steps to prevent the appearance of infringing content. Given the vast quantity of user information uploads to the internet, automated filtering bots, still inefficient and blunt instruments, will de facto be the only way platforms could comply.
NB. “not-for-profit educational and scientific repositories” are excluded from the Article 2 definition of “online content-sharing service provider”.
Sharing and reuse of content and individual freedom of expression risks being curtailed by this Article and not just on profit-making public social media platforms. For example, for-profit online public access teaching and learning platforms also may be ensnared by the Article 2 definition of “online content-sharing service providers”.
See also Recitals 61-71.
Audiovisual works on video-on-demand platforms
- Article 13 (was 10) is a mandatory requirement for Member States to set up or designate an impartial mediation body to assist parties in the negotiation of the licensing of rights in the course of concluding agreements for the purpose of making available audiovisual works on video-on-demand services.
See also Recitals 51-52.
Authors and performers
Claims to fair compensation
- Article 16 (was 12) gives Member States the option to provide that “where an author has transferred or licensed a right to a publisher, such a transfer or licence constitutes a sufficient legal basis for the publisher to be entitled to a share of the compensation for the use of the work made under an exception or limitation to the transferred or licensed right.” This measure “shall be without prejudice to existing and future arrangements in Member States concerning public lending rights”.
See also Recital 60.
Author and performer contracts for the exploitation of their works and performances
- Articles 18-23 provide mandatory requirements for authors and performers to receive appropriate and proportionate remuneration when licensing or transferring their rights for the exploitation of their works or performances including, in certain conditions, the ability to subsequently adjust certain types of contract where the original payments turn out to be too low. There are also a mandatory requirements for transparency of reporting to authors and performers by the parties, successors in title (and by request sub-licensees) to whom they had licensed or transferred their rights.
Member States are also mandated to put alternative dispute resolution procedures in place in relation to disputes concerning the transparency obligations and the contract adjustment mechanism. Within certain parameters, authors and performers shall also be able to revoke exclusive licences in whole or in part in cases of lack of exploitation of the work or performance.
The rights granted by Articles 18-22 do not apply to authors of computer programs within the meaning of Article 2 of Directive 2009/24/EC on the legal protection of computer programs.
See also Recitals 72-82.
Amendments to other Directives
- Article 24 (was 17) amends the following Directives:
Database Directive 96/9/EC Art. 6(2)(b) (use for illustration for teaching or scientific research) & Art. 9(b) (extraction for the purposes of illustration for teaching or scientific research) to ensure these exceptions continue to operate without prejudice to the exceptions and limitations provided for in this new Directive.
Information Society Directive 2001/29/EC Art. 5(2)(c) (reproductions made by publicly accessible libraries, educational establishments, museums or archives) & Art. 5(3)(a) (illustration for teaching or scientific research) to ensure that these exceptions operate without prejudice to the exceptions and limitations provided for in this new Directive.
Information Society Directive 2001/29/EC Art. 12(4) concerning additional tasks in respect of this new Directive for the Member States’ Contact Committee set up by this Article.
Relationship with exceptions & limitations provided by other Directives
- Article 25 (was 17a) provides the option for Member States to “adopt or maintain in force broader provisions, compatible with the exceptions and limitations provided for in Directives 96/9/EC and 2001/29/EC, for uses or fields covered by the exceptions or limitations provided for in this Directive.”
This is not quite the end of the road for the Directive. It now awaits adoption by the Council of Ministers and publication in the Official Journal, but no further textual changes are expected. On publication in the Official Journal, Member States will have two years in which to implement the Directive in their national laws.
There will be considerable scope for EBLIDA member organisations to advocate strongly for library and user friendly national implementations in their countries, but that means that library associations and institutions will need to be very active and, where not already in that position, start work now to gain recognition from their government copyright office and legislators of their status as vital copyright stakeholders in the digital environment. EBLIDA intends to take steps to support members in their task.
Acknowledgements - champions for access to knowledge
A big shout-out for the core libraries team who worked on the Directive for the last 2½ years, many also spending a lot of time advocating for libraries and building relationships with Commission, Council and Parliament legislators face to face in Brussels.
The core team members were:
EBLIDA - Vincent Bonnet and Barbara Stratton,
Europeana - Paul Keller,
IFLA - Stephen Wyber and Ariadna Matas,
LIBER - Benjamin White and
SPARC Europe - Vanessa Proudman assisted in succession by Dan Pescod, Ásta Helgadóttir, and Brigitte Vézina.
The core team’s work was supported by colleagues from Electronic Information for Libraries (EIFL), the European University Association (EUA), Public Libraries 2030, the Coalition of Academic Repositories (COAR) and Science Europe.We are also grateful for the information and advice received from Copyright for Creativity (C4C).
Together we saw off several potential disasters and successfully persuaded legislators to insert a number of very good changes to the original draft proposed by the Commission.
The library team could not have achieved as much as it did without the advice and active support of a number of MEPs, too numerous to name here, but six merit especial mention and thanks: former MEP Catherine Stihler, now CEO of Open Knowledge International and MEPs Julia Reda, Marietje Schaake, Lidia Geringer de Oedenberg, Heidi Hautala and Jiří Maštálka.
Our supporters in the Parliament not only understand the internet and the digital environment, but also appreciate the value and importance of libraries for access to knowledge and the delivery of culture, education and research. Together with their assistants and colleagues, they made it possible for important amendments to get through that much more positively shaped the Directive so that it works for the benefit of library users, whether they be researchers, educators and students or the general public.
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