Copyright & Legal Matters Working Group

New European Copyright Directive: A Detailed Look

Posted: 29-03-2019 Topics: Copyright Strategy

On Tuesday this week, the European Parliament voted to adopt the Directive on Copyright in the Digital Single Market by a majority of 348 to 274.

Vote on the new Copyright regulation. Image by European Parliament, CC BY.

The European Council is expected to ratify the Directive next month and —soon after that — it will enter into European Law. Member States will have two years to transpose the new copyright law into their domestic legislation.

Most press coverage about the directive focussed on the changing environment for internet service providers hosting in-copyright materials (e.g. You Tube, FaceBook  etc). LIBER and other library groups expressed public concern about this provision and one relating to a new ancillary right for press publications, leading to our calls for the deletion of these articles. Despite this, the new directive holds important developments for universities, libraries and archives. In fact, it would be safe to say that there is much to be celebrated for libraries, universities and cultural heritage institutions in the new law.

Data Analytics by Libraries, Universities etc (Text and Data mining) Article 3

Universities, educational establishments, libraries etc will be able to data mine in-copyright works to which they have lawful access. While the directive doesn’t quite achieve “the right to read is the right to mine” which LIBER has been strongly campaigning on since 2013, it gets fairly close.

For a start, the exception does not allow contracts to prevent text and data mining — something of international significance as we see the growth of exceptions in copyright law being protected from licences which undermine them. It does, however, allow publishers to use technical protection measure in instances where they need to protect “the security and integrity of the networks and databases where the [in copyright] works … are hosted.” 

The Directive seeks to stress the restricted  nature permitted regarding the use of technical protection measures by publishers by stating in the subsequent sentence that  “Such measures shall not go beyond what is necessary to achieve that objective.”

This
will give organisations the basis to challenge any excessive use of technical
protection measures by rightsholders that prevent this new “right” in EU
copyright law.

Data Analytics by Commercial Organisations  (Text and Data mining) Article 3a (renumbered as 4)

The Directive also introduces an exception, aimed mainly at commercial data analytics and AI. However, this provision isn’t as strong as the exception above because it allows contracts to override data mining where digital material is licensed to organisations via private networks or offline means of digital supply. If the material is available online, however, then only technical means flagging “no data mining allowed” is permitted.

Libraries
and universities strongly supported and shaped this new exception which was not
in the original Commission proposal, because it was viewed as helpful in the
context of the Knowledge Transfer agenda  between private companies and
universities.

Use Of In Copyright Works for Teaching Article 4 (renumbered as 5)

Currently
the licensing situation across Europe that helps educational establishments use
in-copyright works in distance learning and other digital contexts is fragmented
and patchy. This proposal requires Member States to introduce exceptions for
“Illustration for Teaching” where fit-for-purpose exceptions that facilitate
this use in teaching do not exist.

The
proposal leaves much room for interpretation when implementing at the Member
State level, and is one of the many areas that it will be important for LIBER
and its library partners to monitor to ensure it is being implemented in member
states in a fair and balanced way.

Digital Preservation Article 5 (renumbered as 6)

This new exception (as with the Text and Data Mining exception) improved dramatically between the initial draft and the one adopted this Tuesday by the European Parliament. Contracts and technical protection measures (where the correct appeals process to government is followed) may not prevent the exercise of this new exception and the directive clearly allows the use of digital preservation networks, including ones that operate across borders.

This is vitally important given that not every library in Europe has the ability to undertake digital preservation themselves and will need to rely, where appropriate, on third parties to do it for them.

Mass Digitisation of In Copyright but Out of Commerce Works Articles 7-9 (renumbered as 8-11)

This
is Europe’s response to the legal issues raised by the Google Books Project of
2004. From a large research or national library perspective, this amendment is
transformative and will help hugely in European large-scale digitisation
projects.

To date, large scale digitisation projects in Europe have been stymied by the need to do clearances directly with rightsholders: item by item, right by right. Many rightsholders could not be found even after a diligent search, hence the Orphan Works Directive. This item by item approach makes mass digitisation virtually impossible.

When first introduced in 2016 by the Commission, only licence-based solutions via Collective Management Organisations were proposed to help with rights clearance of in-copyright out of commerce works. This meant that where there were no collecting societies (or where they existed but could not offer licences for the purposes of cultural heritage institutions putting their out of commerce works online) the Commission proposal would not have helped. The
original proposal also did not envisage unpublished materials being licensable.

Thanks to much work with MEPs by LIBER, other library partners and Europeana, the Directive now includes a “backstop exception” that can be used if licences are not available for the two reasons stated above.  This acts like a carrot to Collective Management Organisations, incentivising them to offer licences where they currently are not available.

As with all other articles in the directive, how this is subsequently implemented at Member State level will be crucial to the success of library digitisation projects.

No Copyright in a Facsimile Reproduction of a Public Domain Item Article 10b (renumbered as 14)

Where a public domain item is simply reproduced “as is” then no copyright will exist in the reproduction. This has been a point of debate for many years, but is perhaps not the silver bullet some were hoping for. The Directive makes it clear that reproductions of public domain items can be sold, so many cultural heritage institutions will probably simply seek to rely on contractual terms going forward when giving access to digital copies of public domain items.

Publishers Can Receive Monies for Compensated Exceptions Article 12 (renumbered as 16)

Depending on the activity, across Europe many exceptions are subject to compensation. These are often paid for by levies on copying media or directly by state or national governments.  This new addition to the Copyright Acquis seeks to deal with the ramifications of a court case in Germany, confirming that where a creator licenses, transfers or assigns their rights to a publisher, a publisher can also receive this compensation.

Newspaper Publisher Right Article 11 (renumbered as 15)

This new and controversial addition to the Directive was nick-named the link tax. It applies to the use of online newspapers by commercial internet service providers. If a commercial ISP uses more than “a short extract” from an online press publication, this will have to be licensed.

While it shouldn’t affect libraries, universities and other educational establishments (who, as not-for-profit would fall outside the definition of ISPs), LIBER intends to keep a close eye on its implementation at member state level. This is because the “short extract” interpretation may start to influence how much of an in-copyright work can be used in line with criticism and review, quotation or illustration for teaching exceptions.

Increased Liabilities for Commercial Content Sharing Platforms Article 13 (renumbered as 17)

The most controversial aspect of the directive has been a move to make commercial internet service providers more liable for the in-copyright content that travels across their platforms.

The good news is that, after much concerted joint efforts by the Library and university groups, often led by SPARC Europe, we were able to ensure that not-for-profit educational and scientific repositories were exempt from the obligations of Article 13 (17).

Further Details

For more detail on the above please see a high level general presentation from one of our Copyright and Legal Matters Working Group members. The presentation explains some of the main differences between the Commission 2016 proposal and the version ratified by the European Parliament this week. 

This presentation outlines various aspects of the new DSM Copyright Directive. Download the presentation.

Thank You To All Library Copyright Heroes

LIBER would like to recognise publicly all the individuals (and their employers who often let them do this around their day-jobs) who have worked so tirelessly on the directive. This includes the run up to the draft proposal (2013-2016), as well as the journey of the directive itself through Committees in the European Parliament, trilogue to the final vote. Of particular note, we would like to say a resounding thank you to the following “library heroes”:

LIBER

We hugely appreciate the efforts of our Copyright & Legal Matters Working Group, in particular:

  • Ben White
  • Susan Reilly
  • Kristiina Hormia-Poutanen
  • Maria Rehbinder
  • Jonas Holm

EBLIDA

  • Barbara Stratton
  • Vincent Bonnet

EUROPEANA

  • Paul Keller
  • Lisette Kalshoven

EUROPEAN UNIVERSITY ASSOCIATION

  • Lidia Borrell-Damian
  • Bregt Saenen
  • Julian Bauer

IFLA

  • Ariadna Matas Casadeval
  • Stephen Wyber

MEPs

  • Julia Reda
  • Catherine Stihler

PUBLIC LIBRARIES 2030

  • Ilona Kish
  • Hannah Gent

SCIENCE EUROPE

  • Marie Timmerman

SPARC EUROPE

  • Vanessa Proudman
  • Brigitte Vézina
  • Dan Pescod
  • Ásta Helgadóttir

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