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2019/04 > Copyright in the digital age

The directive on Copyright in the digital single market was definitively adopted on 26 March 2019 by the European Parliament. The purpose of this directive is to protect the rights of authors in the digital world, and its content is additional to the content of previous directives which will continue to apply.

This directive contains 30 articles and 86 recitals. Firstly, it presents an overall framework for protection and a definition of the conditions of use of copyright works in the fields of research, education and the conservation of cultural heritage.

It also establishes rules in order to improve contractual relationship between authors, performers, producers, publishers and online content-sharing platforms. The principles adopted in this regard are described more particularly below.

Exceptions and limitations to copyright remain

The author of an intellectual work enjoys for this work, by the mere fact of its creation, an exclusive intangible property right, enforceable against all. This right has intellectual and moral aspects as well as constituting an asset. Even though authors enjoy significant protection and benefit from a monopoly, there are limitations and exceptions to their rights.

These limitations and exceptions will continue to apply. Thus, contents which are in the public domain or that could be shared without the author’s authorization prior to the adoption of the Directive will remain so.

The following are examples of exceptions or limitations: citation, criticism, review and use for purposes of caricature, parody or pastiche (Article 17.7).

No access to protected works without permission of the author

Article 17. 1 states that an online content-sharing service provider performs an act of communication to the public or makes works available to the public when it gives the public access to works protected by copyright, or other protected items, that have been uploaded by users.

Content-sharing platforms such as Facebook or YouTube, whose actions fall under the scope of the directive, are especially targeted. This is also to encourage the setting up of mechanisms to grant authorisation via license agreements.

Content-monitoring obligation imposed on online content-sharing service providers

This puts an end to the “a priori” lack of responsibility of the services provider with regard to hosted contents. On the contrary, Article 17.3 provides “a priori” for their responsibility, not only for the communication to the public of protected works but also for their being made available by that supplier of services. Up to now, in France such a supplier had the status of host, established by the law of 21 June 2004, and thus was considered only as a simple technical intermediary. As such, they benefited from a mitigated liability regime and liability was only recognized if, upon being warned about hosting illegal content, they did not suspend the broadcast of the illegal content promptly.

As of now, they will also be held responsible in a case of unauthorized broadcasting of protected contents or if they cannot prove to have implemented best efforts to obtain an authorization or on the contrary to ensure the unavailability of these contents, to block their access and prevent them from being uploaded in the future.

Nevertheless, an adjustment of these conditions is planned for recent suppliers (in business for less than 3 years) and who have an annual turnover of less than 10 million euros (Article 17.6).

Fair remuneration of authors and performers under license agreements

The remuneration of authors and performers under agreements relating to exploitation of their rights must be “appropriate and proportional to the actual or potential economic value of the licensed or transferred rights taking into account…all other circumstances of the case, such as market practices or the actual exploitation of the work …” (Recital 73).

In application of Article 18, Member States must ensure that this principle is implemented (Article 18.1). To do so, they are free to use different mechanisms that can satisfy the principle of freedom of contract and the right balance of rights and interests (Article 18.2). An obligation of transparency with regard to authors is provided for under Article 19, while Articles 20, 21 and 22 provide for mechanisms for adjusting contracts, an extra-judicial procedure for settling disputes and a right of revocation in case of non-use of the work.

The Directive specifies in Article 23 that Articles 18 to 22 do not apply to authors of a computer program within the meaning of Article 2 of the Directive 2009/24 on computer programs.

Online use of press publications

The platforms will have to pay more to the media (authors and editors) for the articles they use (Article 15, point 5).

Article 15 also provides for the right of newspaper publishers to prohibit or authorize the online use of their publications during a time period of two years from 1 January of the year following the date on which the press publication has been published (points 1 and 4). This new right excludes hyperlinks and short extracts or isolated words.

This provision does not apply to private or non-commercial uses of press publications by individual users.

The official publication of the Directive has not yet taken place, but a period of two years is granted for its implementation in national law.

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