Adoption of new European Copyright Directive

On 17 April 2019, the Directive on copyright and related rights in the Digital Single Market¹ (“New Copyright Directive”) was finally adopted after months of negotiation. While the European Commission describes the New Copyright Directive as the “right balance between the interests of all players – users, creators, authors, press – while putting in place proportionate obligations on online platforms”² , some Member States – among which Luxembourg – have disapproved the proposed text of the New Copyright Directive and have considered that it is “a step back for the Digital Single Market rather than a step forward³ ”. Those Member States have in particular denounced the lack of legal clarity of the New Copyright Directive.

Over the past months, the debate has focused in particular on the following provisions:

• Article 15 which deals with the protection of press publications concerning online uses: publishers of press publications are granted the rights to reproduction and making available of works to the public for a period of 2 years from 1 January of the year following the date on which that press publication is published; this right can only be invoked against information society service providers such as the news aggregator Google News;
• Article 17 which deals with the use of protected content by online content-sharing service providers (such as YouTube): the New Copyright Directive clarifies that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public, subject to the prior authorisation of the concerned right holders, when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.

The general rules laid down by these articles are qualified by exceptions resulting from negotiations between parties with opposing interests and it is likely that further discussions will start within the Member States at the time of transposition of the New Copyright Directive.

Member States shall transpose the New Copyright Directive into their respective national legislations by 7 June 2021. Regarding the controversial Article 17, please note that the New Copyright Directive provides that the European Commission shall issue guidance on the application of this article following the organisation of stakeholder dialogues and the results thereof.

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