Expect further debate over EU copyright reforms, says Rauer

Dr. Nils Rauer of Pinsent Masons, the law firm behind Out-Law.com, predicted that discussion will now shift onto how the reforms should be implemented in the national laws of EU member states.

On Monday, the DSM Copyright Directive was formally approved by the Council of Ministers. MEPs voted to adopt the new Directive late last month, meaning the Council's vote allows the Directive to be written into the Official Journal of the EU (OJEU) in the coming days. EU countries will have two years from the date the Directive takes effect to implement its provisions into national law.

"With the controversial debates over the provisions in the DSM Copyright Directive still fresh in the memory, we can assume that the forthcoming implementation process will be accompanied by further discussions as to how exactly the Directive should be transposed at national level," Rauer said.

The reforms were not universally supported by all EU member states, with the Netherlands, Poland and Italy among those that voted against the new measures in the Council's vote. The UK, Germany and France were among the countries that voted in favour of the reforms. The UK's Intellectual Property Office previously told Out-Law.com that the outcome of Brexit will dictate the UK government's approach to implementation of the new EU copyright regime.

Even some member states that voted in favour of the reforms did so with explicit reservations. Accompanying statements emphasise regret that the legislative institutions have not been able to come up with a concept of copyright liability that all stakeholders deem fair and compelling. For example, Germany said that it must be the aim to render so-called 'upload filters' largely unnecessary in practice.

"This is quite remarkable, taking into account that these filters are commonly expected to be the core tool information society service providers will use to fulfil their new obligations under Article 17," said Rauer.

The move to update EU copyright laws was subject to significant lobbying. Two aspects of the reforms attracted particular scrutiny and comment.

The 'Article 13' reforms, which are reflected in Article 17 in the finalised Directive, provide content creators with greater control over where their copyrighted material appears online and require online platforms to intervene to tackle unauthorised use of the material by users.

Campaigners against the provisions previously warned that the proposals would result in the automated filtering of copyrighted content online, with the risk that some content permitted under copyright rules – such as that used in works of parody or under 'fair use' exemptions – are removed from platforms, including memes and remixes.

However, the provisions were subsequently amended and supporters of the reforms have said the changes ensure newly emerging platforms are not exposed to the same burdens as more established platforms, and that there are other safeguards on freedom of expression.

Article 15 of the new Directive has also proved controversial. It requires website operators and social media companies, among others, to make a 'fair and proportionate' payment in remuneration for the digital use of press publications.

Information society service providers, like news aggregators or media monitoring services, will be required to honour the new press publishers' right, but there will be limitations to what the new right protects. For example, the use of 'snippets' of content will continue to be permitted without the need for permission from press publishers where the snippet constitutes a "very short extract" or "individual words".

The new rules also provide for a number of new exceptions to copyright, including on text and data mining, and the use of copyrighted materials for illustrative purposes in the context of online teaching, and they also contain provisions on copyright levies.