On Tuesday 26 March, the European Parliament adopted the text of the controversial draft Directive on Copyright in the Digital Single Market (“The Directive on Copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC”). It aims to align the digital single market and incentivise creativity, investment and new content. It seeks to balance the rights of authors and other stakeholders with those of users and it is this which has come under criticism as not really having been achieved in the draft.

This means that it will in all likelihood come into effect across the EU, in just over two years’ time. This, assuming the UK Government’s Brexit deal is agreed by the UK Parliament, may fall outside any transitional period provided for in the EU Withdrawal Agreement which is due to end, if it is not extended, in December 2020. It would therefore be an option for the UK to agree to adopt it or not during that transitional period when EU law will still apply to the UK. The Directive contains two particularly controversial provisions:

  1. Service providers, such as YouTube, will become responsible for content uploaded to their service by users (article 13). This means they will need to try to obtain any relevant licence from the copyright owner or they may be held liable for copyright infringement. After lengthy industry lobbying, this liability has been made subject to a list of provisos, such as where the service provider can show that it has made best efforts to ensure unauthorised material was not made available to users has acted quickly to remove the infringing material. There is a reduced burden for content sharing services under three years old and with an annual turnover of less than €10 million; and
  2. Publishers of press publications will have the right to prevent further publications by information service providers (article 11). The right lasts for two years after the date of publication by the press publisher. There are exceptions for private, non-commercial use, hyperlinking or the reproduction of very short extracts.

There are fears that having to filter content could lead to some authorised content inadvertently being removed and that information service providers will be overly restricted in what services they can provide.

In March 2018, much to the concern of a large part of the UK’s digital sector, the Prime Minister confirmed the UK would leave the Digital Single Market and seek a bilateral agreement with the EU. This decision appears to have been driven by her red lines on leaving the European single market and having no ECJ jurisdiction in the UK. It remains to be seen if those red lines will survive the current machinations in the UK Parliament or the negotiation of the future relationship with the EU if we leave. From a European perspective, this is the first Directive in many years to attempt to further harmonise copyright law. From the UK perspective, it is unclear whether or not we will adopt it or indeed on what detailed basis we will interact with the Digital Single Market in the future.