The Directive on copyright and related rights in the Digital Single Market, between evolutions and uncertainties
Focus on the content sharing platforms and the related right of press publishers
After many amendments and turnarounds, the new copyright directive was finally enacted March 26, 2019 by the European Parliament and signed on April 17, 2019. It amends Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society and Directive 96/9/EC on the legal protection of databases.
From the first draft presented on the 14th of September 2016 by the European Commission, its stated aim was to harmonize copyright and related rights by adapting them to the digital age, for a fairer balance between rightholders, on the one hand, and internet users, on the other hand. As the result of a compromise, the final text achieves this aim through adjustments made to the monopoly of the former and to the liberties of the latter (freedom of expression, freedom of creation). These will be left to the States and the judicial courts to specify.
The Directive entered into force on the 6th of July 2019 and the Member States have until the 7th of June 2021 to transpose it. France is ahead of the curve insofar as the Senate is currently examining a law proposal for the creation of a related right for the benefit of news agencies and publishers, and a draft law on the reform of public broadcasting (whose spectrum is broader than its title) has been announced for October and is to be applied as early as 2020.
I. A conflict-generating text
The Directive met with strong opposition, especially as of 2018, with the publication of MEP Axel Voss’s report which introduced a liability regime for platforms for « online content sharing » platforms (recital 38 and Article 13 of the project), as well as a principle of a « fair and proportionate » remuneration for authors, performers and press publishers (Articles 11.1 et 14.1 of the project).
Despite the adoption of the report by the legal affairs committee and the support of collecting societies (such as the SACEM) and other representatives of the cultural industry, the European Parliament rejected the text on the 5th of July 2018.
This rejection is mainly attributed to the aggressive campaigns and the lobbying of the GAFA (Google, Amazon, Facebook and Apple), whose business model was challenged by the Directive. Incidentally, YouTube did not hesitate to encourage its users to rise up against the text, with a poster campaign illustrating the application of Article 17.
But this lobbying has also mobilized other actors pursuing different objectives – essentially the supporters of a free and open internet (e.g. NGOs such as Wikipedia, the CCIA, the Mozilla Foundation, the QDN, APRIL), who highlighted the risk of censorship.
However on the 12th of September 2018, in a reversal of trend, the directive proposal was submitted again to the vote in Parliament and was approved by the majority of MEPs. The European institutions reached a consensus on the 13th of February 2019 and the Directive came to rest with a final vote in Parliament.
In the end, its enactment is considered a victory for Europe.
However, the text continues to face many opponents and sceptics such as the MEP Julia Reda, who deplores “a fragmented copyright law across Europe” and the absence of an exception for today’s internet, or YouTube, publicly voicing its concerns about the application of the text.
Poland’s recent action before the European Court of Justice suggests that the directive is far from being definitely accepted.
II. A summary of the main provisions
1. WHO IS TARGETED?
The main actors targeted (Title IV of the Directive) are the platforms which are massively sharing online contents protected by copyright and related rights uploaded by their users, such as Google, YouTube, Dailymotion, Facebook.
The Directive more specifically refers to:
“a provider of an information society serviceof which the main or one of the main purposes isto store and give the public accessto a large amountof copyright-protected works or other protected subject matteruploaded by its users,which it organises and promotes for profit-making purposes.”
According to recitals 62 and 63, this definition should only target “online services that play an important role on the online content market by competing with other online content services, such as online audio and video streaming services, for the same audiences”, and the “large amount” of works or other protected subject matter should be assessed “on a case-by-case basis and should take account of a combination of elements, such as the audience of the service and the number of files of copyright-protected content uploaded by the users of the service”.
All these criteria could receive non-uniform applications at Member State level. The issue is important insofar as that the online content-sharing service provider may be held liable for the acts of communication to the public that it carries out, although it does not act directly on the content. Hence, this service is now positioned between the host provider (which benefits from a lighter liability regime) and the publisher (which is held fully liable in case of infringement).
However, are explicitly excluded:
providers of services, such as not-for-profit online encyclopaedias (Wikipedia);
not-for-profit educational and scientific repositories;
open source software-developing and-sharing platforms;
providers of electronic communications services as defined in Directive (EU) 2018/1972 (internet providers in particular);
online marketplaces (Amazon, EBay);
business-to-business cloud services and cloud services that allow users to upload content for their own use.
The responsibility of the latter remains grafted on the liability regime of the host provider
2. THE SPEARHEAD ARTICLES OF THE DIRECTIVE
The controversies around the Directive focused mainly on two articles.
Article 15 (ex-Article 11), creating a new related right for press publishers
As a reminder, related rights are exclusive rights more recent than copyright and exercised independently of the latter. They are born out of the necessity of making the auxiliaries of creation benefit from the fruit of their efforts in making the works available to the public.
Before the creation of Article 15, only performers, producers of phonograms and videograms and audiovisual communication undertakings enjoyed specific related rights.
The Voss report advocated the creation of a similar related right for sports event organizers, in line with Recital 52 of the “Audiovisual Media Service Directive” 2010/13/EU.
Finally, only the related right for the press publishers went through.
Why this new related right?
This question is not unwelcomed, knowing that the publisher was already invested with copyright by the application of legal or contractual provisions. Despite this, publishers put forward their vulnerability before content aggregators, accused of unfairly capturing the investment from a content they have neither created nor funded.
Therefore, this new right aims to protect the investment made by the publisher in its relationship with the platforms. It is not revolutionary, since similar rights had already been established in Germany in 2013 and in Spain in 2014.
Only the journalistic publications provided under the initiative, editorial responsibility and control of a news publisher are protected by the Directive, which explicitly excludes the scientific and academic publications, as well as the blogs (recital 56 and article 2 4) of the Directive).
In concrete terms:
from now on, any European publisher will have the rights of reproduction and communication for the online use of its press publications falling within the scope of the Directive.
from then on, it will be able to negotiate a remuneration for the use of extracts of such publications.
The French law proposal provides insight about the implementation of this right:
in order to exercise its rights of reproduction and communication to the public, the publisher will be able to choose between a contract and a collective management of rights, and
it will be able to ask for a remuneration that is proportional to the operating profits, except in cases where it is permitted to resort to a flat-rate remuneration, and
it will benefit from an obligation of transparency from the platforms (Article L. 218-4 of the law proposal).
In practice, the publisher’s individual bargaining power will depend on its market position, as the absence of an agreement will force the platforms to index at most hyperlinks or “very short extracts” from its publications and, implicitly, will cause a drop in the visibility for the publisher and the publications.
In response to the fears of the defenders of individual freedoms, the relating right does not apply to private or non-commercial uses of press publications by individual users. These types of use remain authorized and neither authors nor publishers can prohibit them.
Its scope neither extends to hyperlinks, this point having been fiercely debated during the negotiations of the Directive, with strong opposition from content aggregators (Google News, Reddit etc.).
Finally, it does include the use of individual words or very short extracts from a press release (see below).
The author of the article will also receive “an appropriate share” of the revenues received by the publishers under these agreements (Article 15.5). The notion of “appropriate share” is not further clarified, therefore it will be likely to generate non-uniform applications at Member State level.
In this regard, the draft law specifies that authors will be entitled to an appropriate and fair share of the remuneration paid to the publisher, the distribution of which the terms may be fixed by a company agreement or a collective agreement, and expressly refers to the transparency requirement of the Directive for authors and journalists.
The duration of the related right of press publishers which was finally retained by the Directive – two years from the 1st of January of the year following the publication – is very short compared to the other related rights (from fifty to seventy years – Art. L. 211-4 of the Intellectual Property Code), but a longer duration would not have been relevant, given that press publications generally stop attracting interest within a few days after the events to which they relate.
It is also noteworthy that the Directive opens the path for Member states to award to press publishers benefitting from copyright assignments or licenses a share of the compensation due for the use of the work made under an exception or limitation to the transferred or licensed right (Article 16). The practice is already established in France, where publishers receive for instance since 2001, from the CFC, a share of the private copy levy collected by Copie France (art. L311-1, 2nd par. of the Intellectual Property Code).
Exceptions yet to be clarified
First of all, the related right of publishers does not apply to the use of extracts reproducing isolated words, raw information or very short excerpts which do not undermine the investments made by publishers of press publications in the production of content (recital 58).
The transposition into French law has adopted this efficiency criterion that it assesses by using the criterion of substitutability of content. Thus, it states that “this effectiveness is particularly affected when the use of very short extracts is substituted for the press publication itself or dispenses the reader to refer to it.” 
How to appreciate this substitutability? If we consider that the objective of this phrasing is to exclude the exception when it allows to compete with the work from which the extract is drawn, then we come close to the American notion of fair use. Thus, the reproduction of the extract should not constitute a risk for the publisher to lose its readers, who would be satisfied with the few lines summarizing the article referenced by the platform.
It is not certain that the criterion chosen by the French legislator will be unanimously accepted throughout the European union, hence there is a good chance that there will be disparities in the way the Directive is applied by the different Member States. As a result, content sharing services may encounter difficulties in adapting their website to the different national rules. It is likely that the measure will be applied in its strictest version.
Secondly, unlike hyperlinks, nothing seems to indicate that the reproduction of titles of articles escapes the taxation.
Finally, the new right of publishers is independent from the copyright and other related rights likely to protect the contents of the publications and excerpts reproduced by the platforms, which it “leaves intact and shall in no way affect” (art. 15.2). Hence, for instance, should a reproduction of “very short extracts” which are “original” from an article (that is to say extracts that reveal a creative choice of the author) not trigger a remuneration to be paid for the related right of the publisher, such reproduction will still remain, in principle, subjected to authorization and remuneration rules of copyright (even though it is not clear how the original and non-original excerpts will be distinguished at the time of collection). But, conversely, the expiration of copyright and other related rights seems to block the later application of the related right of the publisher (article 15.2, in fine), to avoid reappropriation. Publications using works in the public domain – likely to be protected as derivative or composite works – should not be concerned, but the distinction triggers, here again, practical difficulties.
Article 17 (ex-Article 13) creating a liability regime for content sharing platforms on the internet while introducing a new copyright exception
A lighter liability for the platforms:
The article imposes an obligation for platforms to obtain an authorization (such as a license agreement) from rightholders (Article 17.1 §2) as soon as they perform an act of communication to the public or an act of making available to the public of a work or other subject matter.
The act of communication / making available to the public simply consists of giving “the public access to copyright-protected works or other protected subject matter uploaded by its users” (Article 17.1 §1).
This new definition departs from the case-law of the Court of Justice of the European Union in that it does not take into account certain criteria such as the lucrative nature of the activity or the fact that the platform lists or indexes the works.
This is a significant change following the Voss report, as previously, online content sharing platforms were seen as mere intermediaries (just like the web host and the internet access providers, who benefit from a lighter liability) – liable for the content they transited only if they had actual knowledge of their unlawful nature – and the September 2016 proposal for a directive considered the responsibility of online content-sharing platforms only as a subsidiary to this lighter liability regime, which could have made it virtually unenforceable.
Article 17 now explicitly excludes the lighter liability regime, which will only apply to situations not covered by the Directive (Article 17.3).
Article 17 has undergone many changes since its first version. Originally, the former Article 13 provided for an obligation for platforms to develop, in cooperation with rightholders, “appropriate and proportionate” measures “such as the use of effective content recognition technologies” in order to protect the works identified by the rightholders. As the text referred directly to automatic filtering mechanisms, it was denounced as imposing a requirement of a priori filtering and undermining the freedom of creation on the Internet. Since then, this reference has been removed and the new Article 17 puts greater emphasis on the importance of obtaining an authorization from the rightholders. However, a quick analysis shows that any obligation of automated a priori filtering is not completely ruled out.
It should be noted, concerning the authorization of rightholders, that it extends to users of the platform when they “are not acting on a commercial basis or where their activity does not generate significant revenues” (Art. 17.2).
A new exception to the monopoly of the rightholders:
The directive allows the platforms to free themselves from the requirement of an authorization from the rightholders by creating an exemption from liability in the presence of the following three cumulative conditions (Art. 17.4):
the platform made best efforts to obtain an authorization, and
it made best efforts, in accordance with high industry standards of professional diligence, to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information;
and in any event, it acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads.
In order to know whether the criteria for this exception have been fulfilled, Article 17.5 allows to take into account:
the type, audience and size of the service, as well as the type of works or other protected subject matter uploaded by the users of the service; and
the availability of appropriate and effective means and their cost for the platform.
The burden of proof lies, of course, on the platform.
SMEs (especially start-ups) benefit from a derogatory regime in order to rebalance their obligations, which are necessarily different from those of the major platforms. The Directive is aimed at new online content-sharing service providers, whose services have been made available to the public in the EU for less than three years and whose annual turnover is below EUR 10 million (Art. 17.6). These suppliers are only subject to two obligations:
to have provided their best efforts to obtain an authorization;
to act expeditiously, upon receiving a sufficiently substantiated notice, to disable access to the notified works or other subject matter or to remove those works or other subject matter from their websites.
However, as soon as these providers reach a number of unique visitors per month exceeding five million, they are also required to demonstrate that they have made their best efforts to prevent the infringing content from reappearing after notification.
As regards to the obligation to obtain an authorization from the rightsholder, the use of the expression “best efforts” seems to indicate an obligation of means and not one of results. This should comfort the established practice of the platforms – consisting of having general terms and conditions to be accepted when uploading the content, providing for a license grant to the platform and for guarantees of copyright ownership.
But as for the other two conditions, although automated filtering is no longer provided for as an obligation (on the contrary, the directive states in its article 17.8 that the platform is not subject to a general monitoring obligation) and although the expression “best efforts” indicates, here as well, an obligation of means, the drafting of the text is ambivalent and it is probable that the automated filtering – a priori or a posteriori – becomes the rule, at least if the platforms follow the precautionary principle by applying the Directive as strictly as possible.
Indeed, it is likely that, in order to “ensure the unavailability of specific works and other subject matter” previously reported by rightholders, the platforms systematically constitute databases containing the catalogues provided by the rightholders before any exploitation and automatically filter all new content prior to publication to make sure it is not already in the database. Especially since the costs of human filtering are likely to be very high compared to the amount of content hosted by most platforms (e.g. YouTube with more than one billion users).
The same applies to the obligation to prevent future uploads of works withdrawn after a notification, for which the Directive imposes a “notice, take down and stay down”  obligation, with, therefore, a strong incentive to group together the content which was removed in another or same database, for the purpose, here again, of a new automated a priori filtering.
It is not clear whether, in order to be in conformity with these obligations, it will be sufficient to block only the contents identical to those previously notified or removed, or if the filtering should be extended to similar contents (e.g. durations, different framing, inclusion or association with other content) to eliminate any risk of infringement.
In the second hypothesis, the risk of abusive blocking would be non-negligible, and the platforms can expect an avalanche of claims for infringement of the freedom of expression/creation.
In this respect, the Directive is careful to specify that the collaboration with rightholders must not prevent the making available of works that do not infringe copyright and related rights, particularly in the context of the exercise of an exception or limitation to these rights (Art. 17.7 dealing with citation, criticism, review, caricature, parody and pastiche).
And it asks Member states to put in place an “expeditious complaint and redress mechanism” in order to deal with disputes relating to the blocking or removal of works, probably following the complaints of internet users having deplored the slowness of the relevant services of platforms like YouTube, combined with the lack of reliability of the Content ID system, which, in effect, led to real censorship.
Complaints lodged under this scheme will need to be “processed without undue delay” and the blocking or withdrawal decisions must then be “subject to human review”, which will probably encourage the platform to favor automatic filtering for identical contents, and to filter similar content on a case-by-case basis, and only upon receipt of a “duly justified” withdrawal request (Art. 17.9 paragraph 2).
All in all, the directive seems to delegate to the platforms the responsibility of deciding what is or is not infringing content, similarly to the mechanism established for the right to be forgotten online.
As a result, a certain leniency of the European judge is to be expected, at least during an initial period, pending the setting of more precise guiding criteria.
In any case, the correct application of the text will require effective collaboration between rightholders and platforms.
III. An implementation that remains uncertain
The numerous recitals and the ambiguity cultivated by the text suggest that the Directive seeks, above all, to reconcile the different political approaches and philosophies of each Member State.
Indeed, if the European institutions manage to impulse a better balance and better protect the right holders in an predominantly digital environment, they do that by being careful not to question the principle of national sovereignty.
. Consequently, the Directive leaves, on the one hand, to the creative interpretation of the judge, and, on the other hand, to the negotiation between authors, rightholders and platforms, the task of defining the practical aspects of the implementation of the regimes that it has just established.
In any case, the new Copyright Directive is a text that remains misunderstood and it is still difficult to predict its effects, that much it continues to raise questions.
It remains to be seen whether the many areas of uncertainty will not undermine the desire for European harmonization. “The devil is in the details” and instructive litigation is to be expected in the following years.
 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
 Recital 6 of the Proposal for a directive (COM (2016) 593 of 14 September 2016) and of Directive 2019/790
 Amended recital 38: « Online content sharing service providers perform an act of communication to the public and therefore are responsible for their content. As a consequence, they should conclude fair and appropriate licensing agreements with rightholders. Therefore they cannot benefit from the liability exemption provided for in Article 14 of Directive 2000/31/EC. »
 Media organizations and large publishers according to the #YES2COPYRIGHT initiative, http://authorsocieties.eu/mediaroom/334/33/Rights-holders-band-together-for-a-strong-statement-on-the-Copyright-Directive)
 This model allowing to exploit user-uploaded content without guaranteeing an equitable redistribution of the generated profits to the rights holders; https://lvsl.fr/la-bataille-des-lobbies-europeens-autour-de-la-directive-copyright/
 Traditionally, the term “other protected subject-matter” encompasses: for performers and their representatives, the fixations of their performances; for producers of phonograms, their phonograms; for producers of the first fixations of films, the original and copies of their films; and for broadcasting organizations, fixations of their broadcasts (see in particular Art. 2 of Directive 2001/29/CE of 22 May 2001 and Art. 3, par. 1 of Directive 2006/115/CE of 12 December 2006)
 in its capacity as promoter of a collective work (Article L. 113-5 of the Intellectual Property Code), or under a classic assignment or concession, or by the effect of Art. L. 132-36 which triggers an ab initio assignment in the presence of a contract of employment
 In particular search engines using methods of crawling and indexing
 For both countries, it concerns the reproduction of publications or excerpts by news aggregators. Jean-Michel Bruguière, « Le droit voisin des éditeurs de presse dans la directive sur le droit d’auteur dans le marché numérique et sa transposition en droit français », Légipresse n° 371, Mai 2019, pp. 267-276
 Rights provided for in Article 2 and Article 3, paragraph 2, of Directive 2001/29/CE
 However, this additional remuneration differs from the salary, which is advantageous for the authors
 Article 19 of the Directive and L. 218-5, III of the law proposal
 The project of 2016 provided for a term of fifty years
 New Article L. 211-3-I of the law proposal for the creation of a related right for the benefit of news agencies and publishers
 A use considered as fair, reasonable or equitable so as to constitute an exception to copyright
 Directive 2000/31/CE (« Directive on electronic commerce ») and Article 6-I-2 and -3 of the law for the confidence in the digital economy of 2004 (« LCEN »)
 See the initial recital 38 : « Where information society service providers store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities and performing an act of communication to the public, they are obliged to conclude licensing agreements with rightholders, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament and of the Council»