Digital Single Market Directive on its final lap

An overview of the Directive on Copyright in the Digital Single Market and what it means for libraries, archives, and research.

This post is an adaptation of a post by Barbara Stratton, LACA Vice-Chair and International Spokesperson, for EBLIDA, the European Bureau of Library, Information and Documentation Associations.


On 26th March 2019, 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. The adopted text includes the revisions and compromises agreed by 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 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 and 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. The pan-European and international library associations were thus quite concerned about these two controversial Articles and campaigned with others for them to be dropped from the Directive. LACA wrote to MEPs to ask them to support deletion of these two Articles before the final Parliamentary vote. The 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, the pan-European and international library negotiating team successfully achieved two important carve-outs to these Articles 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

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.

Definitions

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”.

These definitions are 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, this will not apply to libraries, archives and museums. However, it may be possible to obtain this status or to benefit from this when offering 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 may do away with harmonisation and limit benefits for educators. Member States may provide that the exception falls if the rightholder offers an easily available suitable licence covering the needs of educational establishments. Member States may also 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. This exception cannot be overridden by a contract (see Article 7 below).

See also Recitals 19-24.

Libraries, cultural heritage and research institutions

Thanks to the lobbying efforts of European and international library organisations, with the support of national groups such as LACA, the Directive serves the direct public-interest missions and function of libraries, cultural and research institutions very well, although 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 this is done by a research organisation or cultural heritage institution for the purposes of scientific research. This exception cannot be overridden by a contract (see Article 7 below).

See also Recitals 8-18.

Article 4 (was 3a) introduces an 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  may be overridden by a contract. A rightholder could, therefore, continue to control or prevent TDM or choose to price TDM activities into subscription fees for “lawful access”. However, Paragraph 2 of Article 7 (in relation to Technological Protection Measures, TPMs) does apply (see Article 7 below).

See also Recitals 8-18.

Cultural heritage

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 and 28) the use of digital preservation networks within a member state or cross-border. This exception cannot be overridden by a contract (see Article 7 below).

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 (including 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.

Article 8 also introduces a mandatory exception where there is no collecting society that can offer suitable licences. Member States are additionally given the option to legislate 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” (a term that is not defined). This harmonises 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”, so copyright continues to subsist in such works.

See also Recital 53.

Common provisions

Article 7 (was 6) provides:

  • In Paragraph 1, that Articles 3, 5 and 6 cannot be overridden by contract.
  • In Paragraph 2, that national procedures set up under the Information Society Directive 2001/29/EC may be used with regard to the exceptions provided in Articles 3, 4, 5 and 6 in cases where Technical Protection Measures (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 much changed from the original. This Article creates a new neighbouring right for “publishers of press publications established in a Member State” for the use of extracts from news articles, other than individual words or very short extracts (these are not defined, but the 2009 Court of Justice of the EU in Infopaq determined that as few as eleven sequential words could be copyright protected).

Academic journals, also known as “scientific journals”, are excluded from the Article 2 definition of “press publication” and so are excluded from this new neighbouring right.

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, for which they 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.

Uses of protected content by online content-sharing service providers

Article 17 (was 13) also changed considerably during its passage, but 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. The Article achieves this by making 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, still inefficient and blunt, will most likely be the only de facto  way platforms could comply.

“Not-for-profit educational and scientific repositories” are excluded from the Article 2 definition of “online content-sharing service provider”, so are not subject to this new obligation.

This Article risks causing curtailment of sharing and reuse of content and of individual freedom of expression, not just on profit-making social media platforms. For example, for-profit online public access teaching and learning platforms may also be covered 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) establishes 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 mandatory requirements for transparency of reporting to authors and performers by those 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 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.

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) and 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) and 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 and 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.”

What next?

In Europe

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. However, 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.

In the UK

All depends on the course of Brexit. Due to uncertainties at the time of writing, the exact impact for the UK remains unclear. The problems with Articles 15 and 17 (new numbering) aside, this is a good Directive for libraries, archives and research organisations and also provides some help to support online education. The Directive also gives authors greater control over their contracts. As such, if the UK finds that it is not obliged to implement the whole Directive, it would be desirable for it to nevertheless implement the bulk of the Diretcive’s provisions ( excluding Articles 15 and 17).

Informally, the UK Intellectual Property Office has indicated that it is likely to implement some or all of the provisions in this Directive, because it believes it is in the UK’s interests to keep its copyright legislation closely aligned to the EU’s. However, much depends on the form of Brexit the UK ends up with and whether or not this includes a transitional period. Trade deals with third party countries could also affect what elements of this Directive are adopted by the UK in the case of a hard Brexit.

Acknowledgements

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 libraries core team members were: for EBLIDA – Vincent Bonnet and Barbara Stratton, for Europeana – Paul Keller, for IFLA – Stephen Wyber and Ariadna Matas, for LIBER – Benjamin White and for SPARC Europe – Vanessa Proudman, and in succession, 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 2020 (now 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, the libraries team 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.

Supporters in the European 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.