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European Commission goes to court against six countries still to implement the 2019 Copyright Directive

By | Published on Thursday 16 February 2023

European Union

The European Commission has referred six member states of the European Union to the EU courts for failing to get the 2019 Copyright Directive properly integrated into their national copyright systems.

The EC said in a statement yesterday that is had “decided to refer Bulgaria, Denmark, Finland, Latvia, Poland and Portugal to the Court Of Justice Of The EU following their failure to notify complete transposition measures on copyright and related rights in the Digital Single Market (Directive (EU) 2019/790)”.

The 2019 directive made a plethora of amendments to European copyright law of course, all linked to how copyright works in the digital domain.

The headline-grabbing amendment was the one the music industry lobbied hardest for, amending the copyright safe harbour that is relied upon by internet companies whose users share or access copyright protected content without licence.

The safe harbour says that internet companies cannot be held liable for the infringement of their users providing they have systems for removing infringing content if they are made aware of it. Although originally intended to benefit internet service providers and server hosting companies, user-upload platforms like YouTube also claimed protection.

The music industry argued that those platforms were exploiting the safe harbour in order to force music companies into deals that generated much less income for the industry than the likes of Spotify and Apple Music, even though with all the music uploaded by users to YouTube, it had basically become a competitor of those streaming services.

What became Article Seventeen of the directive specifically increases the responsibilities of safe harbour dwelling user-upload platforms. It proved very controversial as the directive was being negotiated, and even once it had been passed.

Although YouTube – the highest profile opponent to the legal reforms as the directive was being finalised – has since evolved and improved its relationships with the music industry.

With EU directives, each country within the union needs to update their national laws to bring them in line with what has been agreed at the European level. The directive sets a deadline for that process – called transposition – to be completed by. With the copyright directive the deadline was June 2021.

Obviously the pandemic was an understandable distraction, which was partly why only three countries met that deadline. Although, some have also argued that the ongoing controversies around certain aspects of the directive, and especially Article Seventeen, slowed down transposition.

That was most true in Poland, where the government unsuccessfully tried to get Article Seventeen annulled through the EU courts, arguing that it conflicted with freedom of expression.

There have been some other controversies during transposition too, including within the music industry. While the music community was pretty much united in supporting the safe harbour reform in Article Seventeen, there were also articles in the directive that specifically boosted the rights of artists and songwriters.

An article that talked about ‘fair renumeration’ was interpreted in Germany and Belgium in a way that granted performers new equitable remuneration rights, in Germany just on user-upload platforms, in Belgium on audio streaming too.

That means that performers are due remuneration when their music is used on those platforms via the collective licensing system, in addition to any monies due to artists via their labels or distributors.

The labels generally oppose this move, arguing that the ER systems which already apply to the broadcast and public performance of recorded music shouldn’t be extended to streaming.

That said, while there may be disagreement within the music community on how that specific element of the directive should be implemented, the entire music industry would probably agree with the EC that there isn’t really any excuse for six countries still having not transposed the 2019 directive into their national laws.

Explaining why that directive needs to be implemented ASAP, the EC said yesterday: “The new copyright rules ensure fairer remuneration for creators and rightholders, press publishers and journalists, in particular when their works are used online. These rules introduce more legal certainty and create more remuneration opportunities in the relationships with online platforms, rebalancing bargaining power”

“The new rules also include new guarantees to fully protect the freedom of expression of users online”, it added, “to allow them to legitimately share their content. Finally, the new rules create further opportunities, in particular through new copyright exceptions and simplified licensing mechanisms for using copyright-protected material online and across borders for education, research and preservation of cultural heritage purposes”.

Outlining its role in getting directives implemented across the union, the EC added: “Under Article 258 of the Treaty On The Functioning Of The EU, if the member state concerned does not comply with the reasoned opinion within the period laid down by the Commission, the latter may bring the matter before the Court Of Justice Of The European Union”.

“Additionally”, it said, “under Article 260(3) [of the same treaty], the Commission can call on the Court Of Justice Of The EU to impose financial sanctions on the member states that failed to fulfil their obligation to notify measures transposing a legislative directive”.

Of course, in the UK, Brexit was underway by the time the 2019 directive went into force, meaning the copyright reforms don’t apply here, despite the British music industry campaigning prolifically in favour of those reforms. And – much to the delight of Brexiteers everywhere – there is nothing the European Commission or EU Courts can do about that.