Transposing the Digital Single Market Directive in your own country

06 June 2019

Carpe Diem — Seizing the Day

by Barbara Stratton
Chair, EBLIDA Expert Group on Information Law

The new DSM Directive becomes law

The new Copyright in the Digital Single Market Directive (‘DSM Directive’ analysed here) was published in the EU Official Journal of 17 May 2019 and comes into force today,  7 June 2019. EU/EEA Member States must transpose it into their national laws by 7 June 2021.

EBLIDA member organisations now have a wonderful opportunity to influence how their countries will implement this Directive, which offers great benefits for the delivery of the missions of all libraries, archives, museums — and for education and research. Doing nothing risks losing out on the full potential a good implementation of this Directive could bring to these sectors.

Much of this Directive has major consequences for our sectors and activities, being concerned with matters such as:

• commercial and non-commercial text and data mining
• using copyright works for distance learning, online teaching etc
• digital preservation and preservation networks
• protection of certain exceptions from contract override
• amelioration of the rules for complaints about TPMs
• mass digitisation and making available of out-of-commerce works
• facsimile images of public domain works of art
• using small snippets of text (including headlines) from newspaper websites
• potential platform liability for user-uploaded copyright infringing materials

 

The DSM Directive’s impact depends very much on the legislative detail and procedural decisions for its transposition that will be made in each Member State, since there is nearly always some scope for interpretation in how a Directive’s provisions may be applied. This Directive contains a number of cross-border provisions, so it is important that national implementations are compatible. It is thus vital that EBLIDA member organisations not only actively engage in the legislative process in their own countries, but share information with their colleagues similarly engaged in the process across Europe.

European library copyright coalition ready to help

EBLIDA and its coalition partners, EUA, IFLA, LIBER, SPARC Europe, COAR, EIFL and Science Europe stand ready to offer support and advice to anyone involved in their national transpositions of the Directive.

• The coalition has already set up a confidential discussion list which key players, copyright committee or group members and legal experts at national level who are supporting the library, archive, museum, education and research communities in this endeavour are invited to join. Sharing information and experiences with, and asking advice from, colleagues across Europe will help everyone to successfully deal with the more difficult challenges of implementing the Directive. Please let relevant contacts in your country know about the list. The name of the list is EU-DSM and you can apply to join it here indicating your role and affiliation.  

• It can be difficult to get one size to fit all, but a high level of harmonisation is important to facilitate the rapid growth in cross-border cultural, educational and research activities in the digital environment. To that end, the coalition intends to provide member organisations and national experts with information on the development and intention of the Directive and general guidance and recommendations concerning its implementation.

• We also need to be advised by national experts of the current provisions in your laws, any peculiarities that might apply and how they think it best to proceed in their countries. On behalf of the coalition, our colleagues at IFLA are seeking to build a resource of relevant Member State legal experts and other copyright experts involved with policymaking for our sectors from whom we can seek occasional advice. We ask that, with their permission, you share with the coalition the names and emails of key individuals and experts as well as of relevant groups in your country, that you suggest we approach for this purpose. Please contact Ariadna Matas at IFLA.  

• ‘In Dublin’s fair city’ the coalition is offering its own LIBER 2019 pre-conference workshop on the morning of 26 June 2019. It will cover the DSM Directive, GDPR, PSI, Horizon Europe and Plan S. If you are attending the conference but not already attending this workshop, do consider swapping to ours!

 

The Ship of State waits for no-one

There will be many competing interests in the national transposition processes. Other players, such as publisher organisations, reproduction rights organisations and major tech services providers, may be better financed and also better resourced, possessing in-house lawyers and advisers who are very familiar with the responsible lawmakers, meeting them regularly and arguing their positions effectively. 

Nevertheless, national organisations and institutions in our sector have a crucial front-line leadership role to play in negotiating with officials and other lawmakers to make our sector’s voice heard cogently — loud and clear at the heart of the legislative process. Even if new to this, they can get themselves into the room and seriously listened to. Asking for private meetings with relevant officials, ministers and other lawmakers as appropriate, attending wider consultation meetings and responding to government consultations is absolutely par for the course. If your government is one that doesn’t formally consult, do still put your organisations out there! Write early on to outline the outcomes you expect from the transposition and to ask for meetings to discuss it further. Keep in close touch with lawmakers and keep an eagle eye out for any announced or unannounced appearance of relevant consultations or draft legislation.

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