Copyright directive

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Copyright modernisation is a major and contentious part of the EU’s DSM strategy.

Relevant policy:

The Copyright Directive is one of a parcel of policies and draft laws relating to copyright. It covers mandatory exceptions for data mining, preservation and education; measures to enable digitisation of out-of-commerce works; measures to improve licensing of Video On Demand rights; a transparency obligation and contract adjustment mechanism; the introduction of a new right for press publishers; and new obligations for online content hosting services

The copyright directive is part of the Digital Single Market strategy.

Progress and developments:

The European Scrutiny Committee of the House of Commons first examined DSM copyright issues in November 2016, when they noted possible implications for online intermediaries as well as some accessibility implications.

In March 2017 the European Scrutiny Committee of the House of Commons was told that “Working Groups have started negotiating other parts of the copyright package, and we expect substantive negotiations on the directive to begin this year”.

The Committee has issued three reports on aspects of the Copyright Directive:

  • Copyright in the Digital Single Market (2 November 2016)
  • Promoting a fair and efficient European copyright-based economy in the Digital Single Market (2 November 2016)
  • EU Implementation of the Marrakesh Treaty (2 November 2016) (response received 8 November)

and has requested further clarification from Government on these aspects throughout Brexit by 9 May.

In February 2018 the ESC examined the proposal for a regulation on copyright, broadcasting, and TV transmissions, noting that it is almost wholly an internal matter for EU members.

In June 2018, with the work having moved on to a new Minister, the ESC reviewed the proposal again and asked these questions ahead of the plenary in Strasbourg:

a)The Minister says11 that “ The Government is of the view there should be greater clarity in the law in this area [the uploading of content to online content sharing sites without permission from right holders]”. The Proposal12 introduces a copyright specific regime for exemption from liability (in place of the exemption from liability provided for in Article 14 of Directive 2000/31) in respect of ‘acts of communication’13 or ‘making available to’ the public of on-line content where no authorisation has been given by the rightsholder. In particular, one limb of that exemption14 is dependent on the online content provider demonstrating that it has made “best efforts to prevent the availability of specific works or other subject matter by implementing effective and proportionate measures…to prevent the availability on its services of the specific works or other subject matter identified by rightsholders…”. It is not clear to the Committee what steps an online content sharing service provider would need to take in order to meet the threshold established by this provision and so avoid liability in a given case. The Committee would be grateful for clarification as to how this provision meets the Government’s objective of clarity and so provides legal certainty to online content providers.

b)Could the Government indicate whether it intends to address the issue of liability (in the context of uploading of content to on line content sharing sites) in its Future Arrangements Agreement with the EU, in particular as regards the liability of UK established online content sharing sites operating in the EU.

c)In his letter of 30 March 2017, the then Minister (Jo Johnson) helpfully informed the then Committee of stakeholder views concerning various aspects of the Proposal. As regards the liability of online service providers which host copyright content those views indicated a substantial number of responses from members of the public who raised concerns around privacy, censorship and data protection. Could the Minister please set out how the current text of the Proposal addresses those concerns.

d)Could the Government explain (i) how they intend to meet the obligations set out at paragraph 2.6 above if the transposition date for the Directive falls within the UK’s transitional/implementation period (ie currently until 31 December 2020) and (ii) the extent to which the UK is likely to want to mirror these provisions in domestic legislation post the transitional/implementation period (ie post 31 December 2020).

e)More generally, whether it is intended to include, in the Future Relationship agreement with the EU, the substance of the legislative proposals and, if not, the extent to which the UK is likely to want to mirror, after the transitional/implantation period (post 31 December 2020), the substance of the legislative proposals where there is a deviation from current UK law.

f)In his letter of 30 March 2017 the then Minister (Jo Johnson) identified the provisions on out-of-commerce works and the exception for education as having cross-border aspects which would require further agreement with the EU if they were to apply to the UK. The Minister said that “the extent to which the UK would wish to mirror these proposals would depend on the form the Directive takes when it is adopted”. Could the Minister update the Committee on whether the Government intends to seek agreement with the EU regarding those aspects of the Proposal.

The proposal, of course, was subsequently rejected in the European Parliament, and goes back for further work. The UK’s scrutiny questions remain valid.

General copyright issues

In July 2018 the Intellectual Property Office published a fact sheet on IP and Brexit. The European Commission has also published a preparedness notice on copyright. In September 2018 Government published its guidance on copyright in the event of a “no deal” Brexit, covering everything from the Marrakesh treaty to database rights.

In November 2018 government published a statutory instrument to amend the Intellectual Property (Copyright and Related Rights Act to ensure some continuity after Brexit. The amendment will be debated in Parliament.