Copyright Directive (2019)

The Directive on Copyright in the Digital Single Market, formally the Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, is a European Union (EU) directive which has been adopted and came into force on 7 June 2019. It is intended to ensure "a well-functioning marketplace for copyright". It extends existing European Union copyright law and is a component of the EU's Digital Single Market project. The Council of the European Union describes their key goals with the Directive as protecting press publications; reducing the "value gap" between the profits made by Internet platforms and by content creators; encouraging collaboration between these two groups, and creating copyright exceptions for text- and data-mining.

The directive was introduced by the European Parliament Committee on Legal Affairs on 20 June 2018, and a revised proposal was approved by the parliament on 12 September 2018. The final version, which resulted from negotiations during formal trilogue meetings, was presented to the parliament on 13 February 2019. The measure was approved by the European Parliament on 26 March 2019 and the directive was approved by the Council of the European Union on 15 April 2019. Member states have two years to pass appropriate legislation to meet the Directive's requirements.

The directive has generally been opposed by major tech companies and a vocal number of Internet users, as well as human rights advocates, but supported by media groups and conglomerates, including newspapers and publishers. Two of the Directive's articles have drawn significant discussion. Draft Article 11 (Article 15 of the directive), known as the "link tax", gives newspapers more direct control and re-use of their work, which may impact some Internet services like news aggregators. Draft Article 13 (Article 17 of the directive) tasks service providers that host user-generated content to employ "effective and proportionate" measures to prevent users from violating copyright. Tech companies expressed concern that this would necessitate the need for upload filters. A broad concern with the Directive is on the use of fair dealing through the directive, and that it could quell freedom of speech.

History

Background

The European Union's (EU) first attempt to unify copyrights in light of digital technologies was adopted in 2001 as the Information Society Directive 2001/29/EC. The Directive's major objectives were to harmonise EU legislation with international law (as set by the 1996 World Intellectual Property Organization treaties), to strengthen intellectual property protection, to reduce conflicts in copyright laws between member states, and to assure adequate remuneration to content producers. While some parts of the 2001 Directive were effective, other parts of the directive were not satisfactory for the current digital market long after its implementation. In 2012, the European Commission (EC) announced that they would be reviewing the 2001 Directive and having stakeholder discussions in light of several issues raised with failed copyright proposals from those in the European Commissioner for Internal Market and Services position. The EC took public comments from December 2013 through March 2014, and published its first report on the state of the EU copyright law in July 2014.

In 2014, Jean-Claude Juncker was elected to the presidency of the European Commission and took office in November 2014. In his campaign position, Juncker saw the potential to "improve" the EU's financial status by harmonising the various digital marketplaces among member nations to create job opportunities and drive a knowledge-based society. Juncker appointed Estonian politician, Andrus Ansip, as vice-president for the Digital Single Market within the EC that year, tasked with working with Günther Oettinger, European Commissioner for Digital Economy and Society, and other sections within the EC to come up with the necessary legislative steps that would be required to implement a Digital Single Market. Initial plans for the legislative steps and their potential impact were announced by the EC in May 2015. Ansip stated that by the implementation of a Digital Single Market, they could increase the European gross domestic product by as much as per year. The European Parliament, following up on a report on the state of European Copyright from a member of the European Parliament (MEP), Felix Reda, that identified several inadequacies of the 2001 Information Society Directive, affirmed support for the EC's goal of a Digital Single Market as well as supporting an initiative with the EP for similar copyright reform. The EC subsequently began working on establishing the legal framework by the end of 2015.

Legislative process

The directive fell within the ordinary legislative procedure, and thus was to be approved by both the European Parliament and the Council of the European Union. While the European Parliament had to pass the Directive with a simple majority, in the council a qualified majority was needed: at least 55% of the countries, representing over 65% of the population.

The first draft of the proposed Directive from the EC was issued on 14 September 2016, Following revisions, the Council of the European Union's Committee of Permanent Representatives (COREPER) approved of the EC's legislative directives on 25 May 2018 and prepared to bring the matter to vote in the EP, to reach a final text, without the support of Germany, Finland, the Netherlands, Slovenia, Belgium, or Hungary. The European Parliament Committee on Legal Affairs finalised their amendments to the directive on 20 June 2018 and put them toward the parliament for negotiation.

Members of the European Parliament voted on 5 July 2018 not to proceed to the negotiation stage, but instead to reopen the directive for debate in September 2018. There were 318 votes to re-open the debate, 278 to proceed, and 31 abstentions.

On 12 September 2018, an updated position of the parliament was approved with the final vote being 438in favour and 226against, meaning that trilogue negotiations can start between the European Commission, the Council of the European Union and the European Parliament, with an expected conclusion in early 2019. Should the three groups agree to the final language, then the directive will be sent to governments of the twenty-eightmember states to be passed as laws within those countries, with each country formalising certain processes as necessary to meet their existing laws.

Initial trilogue meetings overseen by Romania were scheduled to start on 21 January 2019, however, on 19 January 2019, Romania cancelled these meetings following the rejection of Romania's proposed compromise text by eleven countries: Germany, Belgium, the Netherlands, Finland, Slovenia, Italy, Poland, Sweden, Croatia, Luxembourg and Portugal. With the exclusion of Portugal and Croatia, the other nine countries rejected the compromised text for Articles 11 and/or 13 stating that the measures did not do enough to do to protect their citizens' copyright protections. Romania had the opportunity to revise their text to gain a majority vote, delaying the vote.

The trilogue negotiations were completed on 13 February 2019, the final text still retaining the controversial Articles 11 and 13. At this point, the text was reviewed by the European Parliament Committee on Legal Affairs, and then presented to the full European Parliament for a vote. The vote in Parliament was held on 26 March 2019, with the Directive passing by a vote of 348 MPs to 274 against. After corrections of mistaken votes, the result was a vote of 338 MPs to 284.voting results with corrections (end of page 53)
on page 52-53 The main support for the directive came from the centre-right ( EPP). In terms of countries, most votes in favour came from France (62), Italy (39), Germany (38), Spain (34) and the UK (31), while the most votes against it came from Germany (49), Poland (33), UK (30), Italy (27) and the Netherlands (17). While there had been an additional vote on an amendment to have a separate vote on the inclusion of the two controversial Articles (draft Articles 11 and 13, Directive Articles 15 and 17), the amendment narrowly failed to pass, with at least 13 MEPs stating they mistakenly voted the wrong way on this vote; if these had been voted as the MEP had intended, the amendment would have passed and required the additional vote.

; Voting results in the European Parliament without corrections on 26 March 2019 by political groups
(In favour/against DSM copyright directive)

The Directive was approved by the Council of the European Union on 15 April 2019. 19 member states (representing 71% of the EU population in the countries that cast a vote) voted in favour of the Directive with six opposing and three abstaining.

The Directive entered into force on 7 June 2019. Member states had until 7 June 2021 to introduce laws within their own countries to support the Directive.

Content

Article numbers refer to the draft version of this copyright directive up through around 20 March 2019; the approved directive reorders several of the articles, such as draft Article 13 becoming the Directive's Article 17.

Article 3 and 4

Article 3 introduces a copyright exception for text and data mining (TDM) for the purposes of scientific research and article 4 for any TDM. The COREPER version had both a mandatory and an optional extension.

These exceptions predate the rise of generative AI and the copyright questions associated with it. But the fact that the EU's 2024 AI Act explicitly refers to the commercial TDM exception in article 4 "is widely seen as a clear indication of the EU legislator’s intention that the exception covers AI data collection", a view that was also endorsed in a 2024 German court decision. Unlike the TDM exception for scientific research in article 3, the more general exception in article 4 only applies if the copyright holder has not opted out.

Depending on whether it acknowledges the public domain status of facts and information, the TDM exception could increase or decrease restrictions compared to the status quo.

Article 5

Article 5 introduces a mandatory exception for the use of copyrighted works as part of "digital and cross-border teaching activities". This article clarifies that educational establishments can make non-commercial use of copyrighted works for illustrative purposes.

There have been worries from the educational sector that the exception proposed in article 5 is too limiting. For example, the sector proposes to broaden the scope of "educational establishments" to include cultural heritage institutions. The most debated part of the article is 5(2), under which the exception would not be available if there are "adequate licenses" available in the market.

The COREPER version has changes to reflect the arguments of the education sector, but still includes the debated article 5(2).

Article 14

Article 14 states that reproductions of works of visual art that are in the public domain cannot be subject to copyright or related rights, unless the reproduction is an original creative work.

Draft Article 11 (Article 15 of the directive)

Draft Article 11 (Article 15 of the directive) extends the 2001 Information Society Directive to grant publishers direct copyright over "online use of their press publications by information society service providers". Under current EU law, publishers instead rely on authors assigning copyright to them and must prove rights ownership for each individual work. The version of the directive voted on by the European Parliament Committee on Legal Affairs contained explicit exemptions for the act of hyperlinking and "legitimate private and non-commercial use of press publications by individual users".

The proposal attaches several new conditions to the right, including expiry after two years and exemptions for either copying an "insubstantial" part of a work or for copying it in the course of academic or scientific research. It is derived from the ancillary copyright for press publishers