Portret van Johann Lutz

DSM directive adopted – implementation in Member States can still make a difference

Earlier this week, after almost exactly 30 months of legislative wrangling, the EU Member States approved the final compromise of the Directive on Copyright in the Digital Single Market. It’s the same text that was approved by the European Parliament at the end of March. This means that the Directive will become law as soon as it is published in the Official Journal of the European Union. Judged against our own ideas about a modern EU copyright framework that facilitates access to cultural and information, strengthens user rights and reduces unnecessary copyright infringement, the outcome of EU copyright reform process is a big disappointment. The directive expands the scope of copyright and instead of harmonising copyright rules across the EU member states, it contains measures that will further fragment and complicate the EU copyright framework. Instead of strengthening public interest exceptions to copyright, the directive relies on voluntary licensing by rightholders, giving them the ability to block users’ access.

As a result the final directive does not live up to the “Digital Single Market” label that it carries in its title. The adopted text does very little to harmonise an already complex set of rules among the Member States. Instead, the directive creates additional rules to the system that have been designed to further the (perceived) interests for specific classes of rightholders—most notably the music industry and press publishers. Once the directive has been implemented in the Member States, the EU copyright system will likely be more complex, and thus more difficult and costly to navigate for users and European businesses.

In this regard the provisions of Article 17 (formerly Article 13) remain the most problematic in the entire directive. The article is a legislative monstrosity that will most likely achieve the opposite of what it was intended to accomplish. Instead of establishing clear rules that require commercial content sharing platforms to adequately remunerate the creators of the works that they distribute, it will impose substantial regulatory burdens and create legal uncertainties for years to come. The most likely benefactors of this outcome will be large rightholders and the incumbent dominant platforms. The existing intermediaries within the creative value chain will have the means to navigate the uncertainties and conclude complex licensing arrangements, but users and independent creators at the edges of these value chains will suffer the consequences: They will be presented with fewer distribution platforms to choose from, and they will have less freedom of creative expression.

Implementation can make a difference

With the directive formally adopted by both the Parliament and Council, the fight for a better EU copyright enters into a new phase. The EU Member States will soon have two years to implement the rules established by the directive into their national copyright laws. While such implementations will have to include all the problematic aspects of the directive, there is some room for meaningful improvements, and some measures can be taken to mitigate the worst provisions of the directive.

While the directive largely failed at harmonising the EU copyright rules so that users enjoy the same rights in all EU Member States (the most prominent example of this is the freedom of panorama that exists in some member states while it is absent or limited in others), the countries can still contribute to a more harmonised user rights environment by implementing as many of the optional exceptions from the 2001 InfoSoc Directive as possible. While the DSM Directive contains only a handful of mandatory exceptions, Article 25 makes it clear that “Member States may adopt or maintain in force broader provisions, compatible with the exceptions and limitations provided for in [InfoSoc Directive]”. Expanding user rights by maximising the scope of key exceptions will be one of our priorities during the implementation period.

In addition we will keep a close eye on national implementation of the rules laid down in Article 17. In this regard paragraph 10 of the article is particularly interesting as it requires the European Commission, in cooperation with Members States, to organise stakeholder dialogues aimed at providing “guidance on the application of the Article, in particular regarding the cooperation referred to in paragraph 4”.

While this language is rather vague and non-binding, these stakeholder dialogues (if carried out in earnest with input from users and civil society) may provide a last line of defense against the worst excesses of Article 17, such as the assumed widespread use of automated upload filters. In a statement issued on the occasion of this week’s final vote in the Council, the German government notes:

Under Article 17(10), the European Commission is required to conduct a dialogue with all interest groups concerned in order to develop guidelines for the application of Article 17. The provision explicitly calls for a balance to be maintained between fundamental rights and the possibility of using protected content on upload platforms within the framework of legal authorisations. The German Federal Government therefore assumes that this dialogue is based on a spirit of guaranteeing appropriate remuneration for creatives, preventing ‘upload filters’ wherever possible, ensuring freedom of expression and safeguarding user rights. The German Federal Government assumes that uniform implementation throughout the Union will be agreed on in this dialogue, because fragmentary implementation with 27 national variants would not be compatible with the principles of a European Digital Single Market. On the basis of this declaration, the German Federal Government will participate in this dialogue.

In the light of the fact that the German government voted for the directive in spite of massive protests from its own citizens, this conviction needs to be taken with a big grain of salt. But it should not keep us from measuring the implementation steps taken by the Commission and all Member States against this standard.

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