Fifteen years on from the EU Information Society Directive, the Commission has published proposals for a new directive which, like its predecessor, attempts to update European copyright rules in light of constantly evolving technologies.

The period between the two directives has seen successive UK copyright reviews; the most recent – the Hargreaves Review – resulted in a draft of legislative reforms, some of which have resurfaced in the proposed new directive. While the future confluence of UK and EU copyright laws is dependent on the post-Brexit settlement, the continued popularity of UK works within Europe, exemplified by the ALCS collections from EU partner organisations, ensures that the new directive will be relevant to UK authors.

Copyright exceptions

One clear area of overlap between the UK’s Hargreaves reforms and the proposed Directive on Copyright in the Digital Single Market (DSM) is in relation to extended copyright exceptions. The directive includes mandatory exceptions in relation to text and data mining (copying material to facilitate digital analysis techniques), copying by cultural heritage institutions to preserve degrading works in their collections and digital uses within teaching and learning activities. Given that the vast majority of ALCS members receive payments from educational copying licences and schemes, it is the last of these that has been the main focus of our lobbying activities during the UK and EU reviews. Thankfully, the new teaching exception in the directive embodies the balance that we have been calling for, enabling access to works for education but at the same time preserving the right of authors and other rightsholders to be compensated through licensing or other measures.

Another mechanism introduced into UK law following the Hargreaves Review that also appears in the directive is the use of extended collective licensing to facilitate high-volume digitisation projects undertaken by cultural heritage organisations in relation to works that are ‘out of commerce’. ALCS continues to work with libraries and licensing partners to identify digitisation projects that could operate under the UK regulations.

Thankfully, the new teaching exception in the directive embodies the balance that we have been calling for.

Press publishers and third-party licensing

Perhaps the most controversial proposal within the directive is the granting of a new right for publishers of ‘press publications’ to license third parties who reuse their content online. This is seen as a means of bolstering income for news publishers, who have seen a migration of readers to online news aggregation sites, such as Google News, with a consequent reduction in their advertising revenues. Attempts have already been made in some European territories to charge third-party news aggregators, with mixed results. If, however, such schemes should gain traction, it seems only fair that journalists and other contributors to news publications should receive part of any new revenue stream.

The proposals also enable publishers to receive a share of compensation due for uses permitted by copyright exceptions. This measure is designed to deal with the aftermath of the Reprobel case (as reported in July’s editionof ALCS News), which has seen disruptions to collective licensing payments in Belgium and Germany.

… included in the directive in the interest of fairness [are] measures designed to ensure that authors and performers receive fair remuneration when they transfer their rights to others to exploit on their behalf.

Establishing a balance

The directive further attempts to re-establish a balance between rights and exploitation by requiring that online services that enable users to upload copyright content (such as YouTube) cooperate with rightsholders to put in place licensing agreements or implement the necessary technology to identify content and remove infringing material. The triangle between rightsholder, user and online ‘access facilitator’, while not eternal, has certainly proved to be one of the most durable elements of the post Web 2.0 copyright debate. It is encouraging that the EU is seeking to establish some ground rules, although it remains to be seen how much impact these will have in practice.

The directive in relation to fair contracts

Sticking with triangles, a further measure included in the directive in the interest of fairness is the so-called ‘transparency triangle’, three measures designed to ensure that authors and performers receive fair remuneration when they transfer their rights to others to exploit on their behalf. The first point is a requirement to provide clear and timely information on known uses; the second permits requests for additional remuneration in cases where the original payment is disproportionately low compared with the work’s success; the third envisages dispute resolution processes in relation to issues arising from the above. In the past 18 months ALCS has supported campaigns by the Society of Authors (SoA) in its ‘CREATOR‘ principles, and the International Authors Forum’s (IAF) ‘Ten Principles for Fair Contracts‘ which both identify key principles applicable to fair contracts for authors. We will work with the SoA and other industry partners to build on the general framework provided by the new EU provisions to establish domestic, sectoral rules that are fair and workable.

We will work with the SoA and other industry partners to build on the general framework provided by the new EU provisions to establish domestic, sectoral rules that are fair and workable.

The directive now requires the approval of the European Parliament and Council, a process which could be lengthy and may result in amendments. We will engage with this process through our network of European partner organisations and lobbying contacts and we will, of course, report any significant developments in future editions of ALCS News.