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Angelopoulos Report

On 17 April 2021, the EU’s Directive on Copyright in the Digital Single Market (DCDSM) was adopted. This included the highly controversial Articles 15 and 17 on the new related right for press publishers (“press publishers’ right” or PPR) and the new liability scheme for copyright infringement on online platforms (“online content-sharing services providers” or OCSSPs) respectively. On 7 July 2021, the deadline passed for the transposition of the directive into the national law of the 27 EU Member States. Nevertheless, the implementation process is still ongoing in over half of the Member States.

This legal report by Dr Christina Angelopoulos (Associate Professor, University of Cambridge) examines the national implementation of the DCDSM in 11 Member States: Austria, Denmark, Estonia, France, Germany, Hungary, Ireland, Italy, Malta, the Netherlands and Spain. These countries represent those that had completed their implementations of Articles 15 and 17 DCDSM when this legal research project started in February 2022.

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EU (Rounded)
GENERAL - OVERVIEW OF MAIN COMPATIBILITY ISSUES

Listed countries are not exhaustive

A15
A17
additions

Adding elements that:

  • do not exist in the text of the Directive, or
  • are based on Recitals, but are contradicted by the operative text of the Directive
omissions

Omitting elements that are included in the text of the Directive

A15
A17
A15
&
A17
incompatible
gold plating
(excessively maximalist transposition)

Transposition exceeds the requirements of the Directive in a way that is incompatible with it

excessively minimalist transposition

Transposition does not meet the minimum requirements of the Directive

A15
A17
A15
A17
incorrect interpretations of autonomous concepts of EU law

Such interpretations can:

  • result from legacy law, or
  • be a new construct
variations in terminology

Use of divergent terminology that can have significant effects on the meaning of the text and leads to a lack of clarity on compatibility

A15
A17
A15
A17
'homing tendencies'

National attempts to fit the provisions of the Directive into the logic of national law

conclusion: compatibility issues & disharmonising result

Even in cases of compliant implementation, the diversity of the adopted approaches often undercuts the Directive’s ostensible objective of creating a Digital Single Market and the ‘full harmonisation’ approach it takes to this end

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OVERVIEW ARTICLE 15 DCDSM TRANSPOSITIONS
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OVERVIEW ARTICLE 17 DCDSM TRANSPOSITIONS
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MEMBER STATES

austria

  • Incomplete transposition of “press publications” definition: no mention of need to be published in any media under the initiative, editorial responsibility and control of a service provider
  • Extension of the subject matter and beneficiaries of A17: does not appear to be limited to owners of copyright and related rights listed in A3(2) of the InfoSoc Directive
  • Addition of element of competition to OCSSP definition: provider must play “an important role in the market for online content by competing with online content services” (based on a Recital which is coherent with the operative part of the Directive)
  • Ex ante safeguards in cases of pre-flagging and minor extracts: OCSSPs must keep content accessible and inform the rightholder. Automated filtering may not be used to remove or block minor uses of works unless rightholder demonstrates irreparable harm (“balanced” implementation with ex ante user safeguards)
  • Inaccurate rendition of best efforts: wrongful translation of the autonomous notion of EU law as “every effort”
  • Earmark: rightholder can request the use of automated means for the detection of uses which the law views as minor and thus by default permissible
  • Complaint mechanism: procedure must be completed within 2 weeks
  • Sanctions for OCSSPs (fine of up to 1 million euro)
  • Piracy providers excluded from scope
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denmark

  • No definition of “press publications”
  • Replaces “individual words” with “very few words”: potentially implies that “very short extracts” may consist of more than a few words, thus raising the standard set slightly
  • Public domain content exclusion not transposed
  • Exclusion of hyperlinks potentially limited to “clickable” links: might not cover framing/embedding
  • Collective licensing with extended effect allowed
  • No geographic limitations to the A15 right
  • Extension of the subject matter and beneficiaries of A17: explicit extension to producers of photographic pictures and producers of catalogues
  • No carve-outs from OCSSP scope
  • No prohibition on general monitoring: excessively minimalist transposition
  • No parody exception, rejected by court (still in process before Supreme Court)
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estonia

  • Rewording of “press publication” definition: requires “control by an editor’s office” instead of “editorial responsibility”
  • Public domain content exclusion not transposed
  • Minimalist transposition of targeted users: may result in insufficient protection for the holders of rights over subject matter incorporated in press publications
  • Collective licensing with extended effect allowed
  • Unwaivable protections: related rights holders always have the right to renegotiate a relevant and fair remuneration under certain conditions
  • Extension of the subject matter and beneficiaries of A17: not limited to owners of copyright and related rights listed in A3(2) of the InfoSoc Directive
  • Inclusion of carve-outs from OCSSP scope, but unclear if open or closed list
  • Sanctions for OCSSPs (compliance notice and non-compliance levy)
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france

  • Inaccurate transposition of “online uses”: replaced with uses “in digital format”
  • Problematic qualitative approach to “very short extracts”: extract must not be capable of replacing the press publication itself or exempting the reader from referring to it
  • Public domain content exclusion not transposed
  • Extension of beneficiaries of A15: covers also news agencies
  • Broad definition of reproduction right in French law: also covers distribution and adaptation, which is broader than EU copyright law concept
  • Replaces “information society service providers” with “online public communications services” + omits the reference to services normally provided for remuneration but adds a requirement of reciprocal information exchange
  • No exclusion for private or non-commercial uses: excessively minimalist transposition based on inaccurate assumption that this is covered by private copy levy, even though the later only applies to reproduction rights and requires fair compensation
  • Dedicated provisions on licensing: specific criteria to fix remuneration of press publishers
  • Detailed provisions on revenue sharing: process to determine appropriate share via negotiations or, failing that, a designated committee
  • Extension of the subject matter and beneficiaries of A17: not limited to owners of copyright and related rights listed in A3(2) of the InfoSoc Directive
  • Extension of exclusive rights protected to “representation” and “reproduction” with regard to copyright and the rights of communication and broadcasting with regard to related rights
  • Inclusion of carve-outs from OCSSP scope, but unclear if open or closed list + profit making purposes may be direct or indirect
  • “Large amounts” concept replaced with “significant quantities” defined in decree of the Council of State as exceeding certain thresholds, defined by order of the Ministry of Culture
  • No licensing reciprocity principle: authorisations granted to users don’t eliminate the obligation of the OCSSP to obtain an authorisation
  • Business secrets limit information obligation of OCSSPs + possible intervention of  Minister of Culture in certain specific cases
  • Piracy providers excluded from scope
  • Narrow quotation exception
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germany

  • Qualitative approach to “very short extracts”: may include various types of content (e.g. text, photographs, graphics, audio and video). This specificity is compatible
  • Extension of beneficiaries revenue-sharing: beyond authors to other holders of related rights in content included in a press publication
  • Explicit mention of “mere facts” exclusion from scope A15: inclusion of Recital 57 which is coherent with the operative part of the Directive
  • Quantitative definition of “fair compensation” to authors in revenue sharing: at least 30% of “fair compensation” generated by A15 with specific derogations
  • Extension of the subject matter and beneficiaries of A17: not limited to owners of copyright and related rights listed in A3(2) of the InfoSoc Directive
  • Addition of element of competition to OCSSP definition: provider must “compete with online content services in the same target groups” (based on a Recital which is coherent with the operative part of the Directive)
  • Definition of licensing best efforts: OCSSP must only take licences where these are offered and are available through representative rightholders known to them or can be acquired through collecting societies or dependent rights management entities established in Germany + licence must cover a considerable repertoire of works + rightholders must offer reasonable T&Cs + content must have been manifestly communicated to the public in more than minor quantities
  • Ex ante safeguards with pre-flagging and minor extracts concepts: “uses presumably authorised by law” not subject to take-down until a complaint procedure is completed, if automated procedures used + similar procedure for 48 hours for content that was not identified for blocking upon upload. Rightholders informed and retain the right to request take-down and stay-down if they provide a duly substantiated notice. Exception for time-sensitive content where immediate blocking is permitted (“balanced” implementation)
  • Start-ups: no stay down obligation if turnover of no more than 1 million euro
  • Earmarking by trusted rightholders: limited to complaint mechanism
  • Parody exception subject to the payment of “appropriate remuneration”
  • Complaint mechanism: procedure must be completed within 1 week
  • Sanctions for OCSSPs, users and rightholders
  • Information obligation of OCSSPs: extends to users. Authorised persons also granted access to data on the detection and blocking of content for the purposes of scientific research
  • Piracy providers excluded from scope
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hungary

  • Public domain content exclusion not transposed
  • No protection for the holders of related rights over subject matter incorporated in press publications
  • Collective licensing allowed
  • Unwaivable right: the A15 right is unwaivable, although rightholders may refrain from requiring remuneration
  • No geographic limitations to the A15 right
  • Extension of the subject matter and beneficiaries of A17: not limited to owners of copyright and related rights listed in A3(2) of the InfoSoc Directive
  • No carve-outs from OCSSP scope
  • Replacement of “high industry standards” with just “industry standards”
questionnaire
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ireland

  • Geographical limitation of beneficiaries A15: only if established in Ireland
  • Expansion to “reproduction” and “adaptation” instead of just “making available” + making available defined overly broadly in Irish law (includes acts of distribution and broadcasting)
  • Lack of clarity regarding scope of beneficiaries of A17: unclear whether performers are granted protection in relation to their performances
  • Extension of exclusive rights covered to “reproduction” and “adaptation” through references to national law (“homing”), with additional lack of clarity regarding OCSSPs’ possible continued liability for reproduction even if they abide by the conditions of the special liability regime
  • No distinction between “sufficiently substantiated notices” (take-down) and “relevant and necessary information” (stay-down): requires stay down on the basis only of a “sufficiently substantiated notice”
  • Business secrets limit information obligation of OCSSPs
  • Quotation exception and new parody exception subject to the rules on fair dealing
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italy

  • Problematic qualitative approach to “very short extracts”: extract must not exempt the reader from the need to consult the entire article
  • Licensing rules: dedicated provisions on licensing that transform exclusive right into remuneration right, potentially in violation of EU law. AGCOM intervention in case of unsuccessful negotiations on fair compensation; court as last resort
  • Expansion to “communication to the public” instead of “making available”
  • Quantitative definition of “fair compensation” to authors in revenue sharing: between 2% and 5% of “fair compensation” generated by A15
  • Extension of the subject matter and beneficiaries of A17: not limited to owners of copyright and related rights listed in A3(2) of the InfoSoc Directive
  • Inclusion of carve-outs from OCSSP scope, but unclear if open or closed list
  • No carve-out for cloud service providers and online marketplaces OCSSPs that allow the sharing of protected works between multiple users (compatibility with the Directive unclear)
  • Inaccurate rendition of best efforts: wrongful translation of the autonomous notion of EU law as “greatest efforts”
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malta

  • Explicit mention of “mere facts” exclusion from scope A15: inclusion of Recital 57 which is coherent with the operative part of the Directive
  • Specific provisions on revenue sharing: delegates the determination of the amount of remuneration to a designated Board
  • No geographic limitations to the A15 right
  • Principle of appropriate and proportionate remuneration for authors and performers with intervention by a relevant Board that determines the amount of such a remuneration in the absence of an agreement
  • Piracy providers excluded from scope
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netherlands

  • Replaces “individual words” with “a few words”: potentially implies that “very short extracts” may consist of more than a few words, thus raising the standard set slightly
  • Collective licensing allowed
  • Incorporates “communication to the public” despite no general right existing in the Dutch copyright law, although “openbaarmaking” (disclosure to the public) concept covers both the right of communication to the public and the right of making available to the public
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spain

  • Unclear drafting of “press publication” definition: language seems to imply that text-only publications are excluded, as other subject matter in addition to literary works of a journalistic nature is required
  • Qualitative approach to “very short extracts”: must be either very short or of little significance qualitatively and quantitatively
  • Extension of beneficiaries of A15: covers also news agencies
  • Geographical limitation of beneficiaries A15: only if established in Spain
  • Collective licensing allowed
  • Dedicated provisions on licensing: editorial independence, provision of detailed information by ISSPs on the classification of content, and no link with other contracts or obligations
  • Revenue sharing: authors may resort to collective management organisations
  • Extension of the subject matter and beneficiaries of A17: not limited to owners of copyright and related rights listed in A3(2) of the InfoSoc Directive
  • Carve-out from OCSSP definition for online encyclopaedias and educational and scientific repositories only if they have neither direct nor indirect intent to profit
  • Broadening of scope of OCSSP definition: excessively maximalist transposition as provider is OCSSP if stores and gives access to protected content either in large amounts or if it has a large audience in Spain
  • Obligation to remove or disable access to transmissions of live events in real time
  • Inaccurate rendition of best efforts: wrongful translation of the autonomous notion of EU law as “biggest efforts”
  • Undermining of special limited liability regime: even if “biggest efforts” made, OCSSP can be sued by rightholders if unauthorized content that harms them remains available, e.g. for unjust enrichment
  • Basic principles to be respected in negotiations: contractual bona fide, due diligence, transparency and respect for free competition
  • Complaint mechanism: procedure must be completed within 10 business days
  • Information obligation of OCSSPs: info to be provided to rightholders every 6 months, at their request
  • Narrow quotation exception
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