We have been closely following the progress of the new and highly controversial Copyright Directive in the Digital Single Market - the biggest overhaul in copyright law in the last 20 years. We posted recently on 15 April 2019 when the EU Council adopted the Directive (see our blog - Breaking news - EU Council adopts new Copyright Directive), shortly after it was voted through the European Parliament on 26 March 2019 (see our blog - Tears of joy or tears of sorrow? EU Parliament approves biggest overhaul in copyright for 20 years). We explained that the 24 month transposition period for Member States would begin 20 days after publication in the Official Journal.
Publication in the Official Journal
We can now finally report that the new Copyright Directive 2019/790 was published in the Official Journal on Friday 17 May 2019 and the implementation period will kick in 20 days from that date i.e. on 6 June 2019. That means that Member States will need to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 7 June 2021.
The full title of the Directive is rather a mouthful - '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' (NB. The latter Directives being the Database and InfoSoc Directives).
After all the controversy, particularly surrounding Article 17 (the provision which has been nicknamed 'upload filters' or 'the value gap'), it will be interesting to see how the Directive is implemented by the different Member States. There has been criticism that the new Directive has no substance and that some of the provisions are wordy and nebulous, especially paragraph 4 of Article 17, which sets out various, potentially rather onerous obligations on online platforms in relation to third party content that is uploaded by users onto their platforms.
The devil really will be in the detail in respect of those provisions that lack clarity. Under paragraph 10 of Article 17, there is a requirement for the EU Commission to cooperate with Member States, to 'organise stakeholder dialogues to discuss best practices' as to how this provision will operate in practice. These dialogues will no doubt centre around whether online platforms will need to introduce expensive filtering technology to screen for infringing content in order to avoid liability under the Directive or whether there is another, less onerous option (unlikely). It is true that some online platforms e.g. YouTube, already has its own filtering technology in place to deal with infringing content. However, in order to fulfil the obligations under paragraph 4, some are concerned that it may be necessary to install more advanced technology with more sophisticated algorithms.
Once the stakeholder dialogues are complete, the EU Commission will then issue guidance, based on the outcome of these best practice discussions. So, it remains to be seen whether these dialogues will flesh out the bones of the Copyright Directive and provide some much needed meat.
Another question on everybody's lips – will the UK implement the Directive if we Brexit? As we recently reported in our blog, the UK IPO recently confirmed that the UK government may not now implement the new copyright law and a spokesperson for the IPO is reported to have said that UK implementation of the Copyright Directive will be dictated by the outcome of the current Brexit process. However, will the UK Government really have the time, resources or the inclination to create its own new copyright laws to plug the gaps in our own law and bring it into line with the ever-expanding digital online world, especially given its apparent support for the Directive? And even if we do implement the new laws, the cynics among us may wonder whether that will even be enough to keep up with the fast pace at which technology seems to be advancing?
In any case, since the EU Council vote, there have been calls for countries not to drag their feet and implement the reforms quickly. But whilst there is a drive from some countries to implement sooner rather than later, there are most certainly going to be some feet draggers. And it will not be surprising if this Directive, which has been the subject of the most intensive lobbying ever experienced in relation to new legislation, continues to attract a whole lot more over the coming two years.
As ever, we will keep our ears to the ground and will report back on what we hear.