The deadline for the implementation of EU Directive 2019/790 on Copyright and Related Rights in the Digital Single Market (the so-called DSM Directive), adopted by the European Parliament and the Council (EU) over 2 years ago, expired on June 7, 2021. To date, only few EU countries have fulfilled this obligation.
Poland, which from the very beginning has criticised the Directive and challenged its Article 17 before the Court of Justice of the European Union, remains far behind in the race to fully implement this regulation. At the end of 2021, works on the draft amendments to national copyright law finally made it to the list of legislative and policy-making works of the Council of Ministers, and the draft is planned to be adopted in the second quarter of 2022.
Copyrights on the Internet
The adoption of the DSM Directive is a step forward on the road to creating a Digital Single Market in the European Union, an area without any internal borders as far as Internet transactions are concerned. The development of the Digital Single Market is being held back by, among other things, differences in the IP rights regulations of individual Member States. The DSM Directive aims to remove such obstacles and ensure that all users in the EU have wide access to the works published on the Internet.
The Directive is intended to strengthen the position of content creators and publishers in the common digital market, especially in confrontation with the so-called information society service providers, i.e. giants such as YouTube or Google News. According to the declaration of the European Parliament and of the European Council, the Directive aims to ensure that the rights and obligations under copyright law also apply to the Internet.
Publishers will benefit
The implementation of the above, undoubtedly laudable, objectives is to be made possible primarily by the controversial Articles 15 and 17 of the DSM Directive. Press publishers eagerly await the implementation of the former, as Article 15 introduces a new category of a related law they will have.
The essence of the right granted to publishers is that the owners of content aggregation platforms, such as Google News, must obtain consent of the publisher of a given press release in order to make it available on their website. Service providers will negotiate the terms and conditions of any further content share directly with the publishers. Time will therefore tell whether some publishers, tempted by the vision of increasing their coverage, will decide to give such consent free of charge. Examples from the countries that have already implemented the DSM Directive indicate, however, that the new regulation has achieved its intended goal – Google has already concluded agreements with German and French publishers, among others, on the basis of which it will pay for using their content online.
New obligations for service providers
The second most controversial provision, challenged by Poland before the CJEU, is Article 17 of the Directive which introduces an obligation for the providers of online content-sharing services (such as YouTube or Facebook) to conclude licence agreements with entities holding copyrights to works made available on such content-sharing portals. The purpose of the provision is to prevent the publication on the Internet of pirated content which, when copied and then disseminated in the blink of an eye, has obliterated any real copyright protection on the Internet.
In the light of the new legislation, the provider will be now responsible for the content published by portal users. Until now, responsibility in such cases has tended to be blurred. Providers may exempt themselves from liability if they demonstrate that they have made every effort to obtain the author’s permission to publish the work, or that they have removed the work upon receiving notification, thus preventing its further dissemination, and that they have taken appropriate action promptly.
Critics of the provision argue that it will encourage providers to use automated content filtering tools which, lacking human intuition, may block legal content. In its complaint to the CJEU, Poland claims that the introduction of such a mechanism leads to preventive censorship of the Internet. We still have to wait for the judgment in this case. Nevertheless, many speculate that the CJEU will follow the opinion of Advocate General Henrik Saugmandsgaard Øe who stated that the contested provisions do indeed have the effect of interfering with the freedom of expression of online content users, but do not infringe the essence of this right and are therefore compatible with EU primary law.
Better situation of the authors
It is also the intention of the Directive to provide authors with an effective right to equitable remuneration. What is new in relation to the regulations currently in force in Poland, is, above all, the fact that this right has been complemented with specific powers vested in authors, supporting effective execution thereof. These powers include, inter alia, the obligation to regularly inform the authors about their work being used and the right to revoke the license or transfer the rights, should such work not be exploited.
So, when some lose, the authors are to benefit. The adoption of Article 17, together with the successive provisions of the Directive, makes this new regulation likely to tip the balance of interests in the digital milieu (and beyond) in favour of the authors.
Co-author: Tomasz Grucelski, Patent & Trademark Attorney, Advocate, Partner, Head of Litigation Department, JWP Patent & Trademark Attorneys
The article was published on January 28, 2022, in Rzeczpospolita