The Directive on Copyright in the Digital Single Market, formally the Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, is a European Union (EU) directive which has been adopted and came into force on 6 June 2019. It is intended to ensure "a well-functioning marketplace for copyright". It extends existing European Union copyright law and is a component of the EU's Digital Single Market project. The Council of the European Union describes their key goals with the Directive as protecting press publications; reducing the "value gap" between the profits made by Internet platforms and by content creators; encouraging collaboration between these two groups, and creating copyright exceptions for text- and data-mining.
The directive was introduced in the European Parliament Committee on Legal Affairs on 20 June 2018, and a revised proposal was approved by the parliament on 12 September 2018. The final version, which resulted from negotiations during formal trilogue meetings, was presented to the parliament on 13 February 2019. It was approved by the European Parliament on 26 March 2019 and by the Council of the European Union on 15 April 2019. Member states had two years to pass appropriate legislation to meet the Directive's requirements.
The directive has generally been opposed by major tech companies and a vocal number of Internet users, as well as human rights advocates, but supported by media groups and conglomerates, including newspapers and publishers. Two of the Directive's articles have drawn significant discussion. Draft Article 11 (Article 15 of the directive), known as the "link tax", gives newspapers more direct control and re-use of their work, which may impact some Internet services like news aggregators. Draft Article 13 (Article 17 of the directive) tasks service providers that host user-generated content to employ "effective and proportionate" measures to prevent users from violating copyright. Tech companies expressed concern that this would necessitate the need for upload filters. A broad concern with the Directive is on the use of fair dealing through the directive, and that it could quell freedom of speech.
Provisions
Article numbers refer to the draft version of this copyright directive up through around 20 March 2019; the approved directive reorders several of the articles, such as draft Article 13 becoming the Directive's Article 17.
Article 3 and 4
Article 3 introduces a copyright exception for text and data mining (TDM) for the purposes of scientific research and article 4 for any TDM. The original COREPER version had both a mandatory and an optional extension.
These exceptions predate the rise of generative AI and the copyright questions associated with it. But the fact that the EU's 2024 AI Act explicitly refers to the commercial TDM exception in article 4 "is widely seen as a clear indication of the EU legislator’s intention that the exception covers AI data collection", a view that was also endorsed in a 2024 German court decision. Unlike the TDM exception for scientific research in article 3, the more general exception in article 4 only applies if the copyright holder has not opted out.
Depending on whether it acknowledges the public domain status of facts and information, the TDM exception could increase or decrease restrictions compared to the status quo.
Article 5
Article 5 introduces a mandatory exception for the use of copyrighted works as part of "digital and cross-border teaching activities". This article clarifies that educational establishments can make non-commercial use of copyrighted works for illustrative purposes.
There have been worries from the educational sector that the exception proposed in article 5 is too limiting. For example, the sector proposes to broaden the scope of "educational establishments" to include cultural heritage institutions. The most debated part of the article is 5(2), under which the exception would not be available if there are "adequate licenses" available in the market.
Article 14
Article 14 states that reproductions of works of visual art that are in the public domain cannot be subject to copyright or related rights, unless the reproduction is an original creative work.
Draft Article 11 (Article 15 of the directive)
Draft Article 11 (Article 15 of the directive) extends the 2001 Information Society Directive to grant publishers direct copyright over "online use of their press publications by information society service providers". Under current EU law, publishers instead rely on authors assigning copyright to them and must prove rights ownership for each individual work. The version of the directive voted on by the European Parliament Committee on Legal Affairs contained explicit exemptions for the act of hyperlinking and "legitimate private and non-commercial use of press publications by individual users".
The proposal attaches several new conditions to the right, including expiry after two years and exemptions for either copying an "insubstantial" part of a work or for copying it in the course of academic or scientific research. It is derived from the ancillary copyright for press publishers which was introduced in Germany in 2013. Press publishing, "whose purpose is to inform the general public and which are periodically or regularly updated", is distinguished from academic and scientific publishing (Recital 33).
Article 11 was moved to Article 15 in the final draft from the trilogue negotiations issued 26 March 2019 and approved by the Parliament and Council.
Draft Article 13 (Directive Article 17)
Draft Article 13 of the draft replaces the "mere conduit" exemption from copyright infringement from for-profit "online content sharing service providers" with a new, conditional exemption to liability. These conditions are an implementation of "effective and proportionate measures", as claimed by service providers, to "prevent the availability of specific [unlicensed] works identified by rightsholders", acting "expeditiously" to remove them, and demonstrating that "best efforts" have been made to prevent their future availability. The article also extends any licenses granted to content hosts to their users, as long as those users are not acting "on a commercial basis".
The article directs member states to consider the size of the provider, the amount of content uploaded, and the effectiveness of the measures imposed "in light of technological developments". It also mandates an appeals process, and requires content hosts to share "information on the use of content" with the content's owner, the lack of which has been a point of contention in the past.
Draft Article 13's provisions target commercial web hosts which "store and give the public access to a large number of works or other subject-matter uploaded by its users which [they] organise and promote for profit-making purposes". The proposal makes explicit that this does not include private cloud storage services, non-profit encyclopedias (such as Wikipedia), nor non-profit educational or scientific repositories.
Draft Article 13b requires websites which "automatically reproduce or refer to significant amounts of copyright-protected visual works" to "conclude fair and balanced licensing agreements with any requesting rightholders [sic]".
Draft Article 13 was named Article 17 in the final trilogue draft issued in February 2019 and approved by the European Parliament and Council.
Draft Articles 14 through 16 (Directive articles 18 through 20)
As a whole, draft articles 14-16 (Directive Articles 18–20) in the working version of the Directive, improve the bargaining position of authors and performers, even though it set out systems that were weaker than some existing ones in member states. Draft article 15 (Directive article 19) aims to allow authors to increase their remuneration in some cases where it is disproportionately low.
Associations of authors had proposed a "rights reversion mechanism" which would allow cancelling a copyright transfer agreement proven to be disadvantageous.
Other articles
Other passages of the proposal attempt to clarify the legal status of orphan works and certain common activities by libraries.
Prior to the Trilogue negotiations, Article 12a proposed granting sports event organisers copyright over recordings of their events. The March 2019 version only says, on the last page, that the commission in the future will assess the challenges of illegal online transmissions of sports broadcasts.
History
Background
The European Union's (EU) first attempt to unify copyrights in light of digital technologies was adopted in 2001 as the Information Society Directive 2001/29/EC. The Directive's major objectives were to harmonise EU legislation with international law (as set by the 1996 World Intellectual Property Organization treaties), to strengthen intellectual property protection, to reduce conflicts in copyright laws between member states, and to assure adequate remuneration to content producers. While some parts of the 2001 Directive were effective, other parts of the directive were not satisfactory for the current digital market long after its implementation. In 2012, the European Commission (EC) announced that they would be reviewing the 2001 Directive and having stakeholder discussions in light of several issues raised with failed copyright proposals from those in the European Commissioner for Internal Market and Services position. The EC took public comments from December 2013 through March 2014, and published its first report on the state of the EU copyright law in July 2014.
In 2014, Jean-Claude Juncker was elected to the presidency of the European Commission and took office in November 2014. In his campaign position, Juncker saw the potential to "improve" the EU's financial status by harmonising the various digital marketplaces among member nations to create job opportunities and drive a knowledge-based society. Juncker appointed Estonian politician, Andrus Ansip, as vice-president for the Digital Single Market within the EC that year, tasked with working with Günther Oettinger, European Commissioner for Digital Economy and Society, and other sections within the EC to come up with the necessary legislative steps that would be required to implement a Digital Single Market. Initial plans for the legislative steps and their potential impact were announced by the EC in May 2015. Ansip stated that by the implementation of a Digital Single Market, they could increase the European gross domestic product by as much as €415 billion per year. The European Parliament, following up on a report on the state of European Copyright from a member of the European Parliament (MEP), Felix Reda, that identified several inadequacies of the 2001 Information Society Directive, affirmed support for the EC's goal of a Digital Single Market as well as supporting an initiative with the EP for similar copyright reform. The EC subsequently began working on establishing the legal framework by the end of 2015.
Legislative process
The directive fell within the ordinary legislative procedure, and thus was to be approved by both the European Parliament and the Council of the European Union. While the European Parliament had to pass the Directive with a simple majority, in the council a qualified majority was needed: at least 55% of the countries, representing over 65% of the population.
The first draft of the proposed Directive from the EC was issued on 14 September 2016, Following revisions, the Council of the European Union's Committee of Permanent Representatives (COREPER) approved of the EC's legislative directives on 25 May 2018 and prepared to bring the matter to vote in the EP, to reach a final text, without the support of Germany, Finland, the Netherlands, Slovenia, Belgium, or Hungary. The European Parliament Committee on Legal Affairs finalised their amendments to the directive on 20 June 2018 and put them toward the parliament for negotiation.
Members of the European Parliament voted on 5 July 2018 not to proceed to the negotiation stage, but instead to reopen the directive for debate in September 2018. There were 318 votes to re-open the debate, 278 to proceed, and 31 abstentions.
On 12 September 2018, an updated position of the parliament was approved with the final vote being 438 in favour and 226 against, meaning that trilogue negotiations can start between the European Commission, the Council of the European Union and the European Parliament, with an expected conclusion in early 2019. Should the three groups agree to the final language, then the directive will be sent to governments of the then twenty-eight member states to be passed as laws within those countries, with each country formalising certain processes as necessary to meet their existing laws.
Initial trilogue meetings overseen by Romania were scheduled to start on 21 January 2019, however, on 19 January 2019, Romania cancelled these meetings following the rejection of Romania's proposed compromise text by eleven countries: Germany, Belgium, the Netherlands, Finland, Slovenia, Italy, Poland, Sweden, Croatia, Luxembourg and Portugal. With the exclusion of Portugal and Croatia, the other nine countries rejected the compromised text for Articles 11 and/or 13 stating that the measures did not do enough to do to protect their citizens' copyright protections. Romania had the opportunity to revise their text to gain a majority vote, delaying the vote.