In April 2019, after two and a half years of discussions, the EU adopted the Directive on Copyright and Related Rights in the Digital Single Market. The EU Member States have until 7 June 2021 to implement the rules established by the new Copyright Directive into their national laws. These guidelines aim to explain different provisions of the Directive and make suggestions on what to advocate for during the implementation process of those provisions at national level.

🎯 Objective

The public discussions of the new Copyright Directive were largely centred on a small number of problematic clauses (press publishers right, upload filters). However, the Directive also includes a number of provisions that improve the existing EU copyright rules (new copyright exceptions, protections for the public domain).

While the national implementations will have to include all the problematic aspects of the new Copyright Directive, there is some room for meaningful improvements, and some measures can be taken to mitigate the worst provisions of the Directive.

These guidelines have the general objective of expanding and strengthening user rights at a national level beyond what is strictly prescribed by the new Copyright Directive. Our detailed proposals try to achieve this objective by suggesting that, during the national implementation process, Member States make use of the following flexibilities:

• use the policy space available under existing EU laws (such as the InfoSoc Directive) to adopt or maintain in force copyright exceptions that are broader in scope than those mandated by the new Copyright Directive (as permitted by Article 25);
• use the flexibility given by new Copyright Directive to fully explore legal mechanisms for granting wide authorizations to online content-sharing platforms and limit, to the extent possible, the application of filtering technologies, while adopting strong user rights safeguards.
• use the flexibilities given by the new Copyright Directive to reject options that would make a copyright exception subject to terms and conditions that harm the public interest or set dangerous precedents for user rights;
• make use of their competence to legislate in the field of copyright, to protect all national exceptions from contractual override;
• put in place a rapid-response, transparent system to ensure that the beneficiaries of copyright exceptions can effectively and speedily use content that is protected by technical protection measures;
• make use of their competence to legislate in the public domain field, to adopt stronger safeguards for the protection of the users’ right to freely enjoy public domain works;

📑 Articles

These guidelines take apart the following provisions of the new Copyright Directive (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, also known as “DSM Directive”):

Articles 3-4: Text and data mining

Article 5: Digital and cross-border teaching activities

Article 6: Preservation of cultural heritage

Article 7: Contractual and technological override

Articles 8-11: Use of out-of-commerce works

Article 14: Works of visual art in the public domain

Article 15: Protection of press publications concerning online uses