The digital single market is one of European Union’s most important achievement and its best offer in times of ever greater globalization.
The aim of the DSM strategy is to create an area where businesses and consumers have unrestricted access to digital goods and services all over Europe, where the free flow of data creates an environment that enhances both competition and innovation while the digital economy is significantly boosted . However, digital single market’s aim is not only to improve the European economy, but also to protect citizens’ copyrights, which are becoming more and more sensitive, as they are constantly violated.
What is the connection between DSM and
copyrights?
In the limits of the improved access to digital goods and services the DSM offers, the European Commission has suggested a more modern European legislation on intellectual property rights to be protected in the single market against the provision of online products and services.
What
does the new copyright Directive forecasts?
This new Directive (EU 2019/790) foresees, among others, measures aiming at improving the position of right- holders to negotiate and be remunerated for the exploitation of their work by online services giving access to user-uploaded content. Such rights are granted to authors (copyright or authors’ rights) as well as to performers, producers and broadcasters.
More specifically, there rights include:
- Economic
rights which enable right holders to control the use of their work and other
protected materials and be remunerated for their use. They normally take the
form of exclusive rights, for example exclusive right to authorize or prohibit
the making and distribution of copies as well as communication to the
public.
- Moral
rights include the right to claim authorship of the work and the right to
object to any derogatory action in relation to the work.
These rights are precisely
the content of the most controversial article in the new Directive, Article 17 (previous 13). But what does Article
17 foresee?
Article 17 states that content sharing services must be
licensed by (copyright) owners. This means that creators and performers will be
able to claim additional remuneration from distributors who exercise their
rights when the remuneration originally agreed is disproportionately lower than
the distributor’s profits.
If no authorization is granted, online content-sharing
service providers shall be liable for unauthorized acts of communication to the
public, including making available to the public, of copyright-protected works
and other subject matter, unless the service providers demonstrate that they
have:
(a) made best efforts to obtain an authorization, and
(b) made, in accordance with high industry standards of
professional diligence, best efforts to ensure the unavailability of specific
works and other subject matter for which the rightsholders have provided the
service providers with the relevant and necessary information; and in any event
(c) acted expeditiously, upon receiving a sufficiently
substantiated notice from the rightsholders, 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 accordance with point (b).
It is important to note that these rules apply to services that have been available in the EU for more than three years, or have an annual turnover of more than € 10m (£ 8.8m, $ 11.2m).
Prior to the new copyright Directive all well-known online platforms (Google, YouTube, Facebook) from the first years of their existence included uncountable copyrights of their users. Most commonly, people used to share their creations in these platforms and more specifically, uploaded music songs, poems as well as other work of their creation. This however led to the exploitation of the work uploaded by different users, as YouTube users for example could easily download them for free.
What are the concerns?
Users often
argue that strict copyright
rules could destroy the vibrant internet culture referring to memes for example,
which often replicate unlicensed material while the legal status of streamers,
who post videos of themselves playing video games online, is also in question. Furthermore,
although website owners aren’t required to install content monitoring software
to detect copyright material, it will however be impossible in practice to
guarantee a site isn’t infringing the rules without this software. While article
13 does not oblige companies to filter the content of users, many argue that
companies will have no choice but to enforce filtering mechanisms For example,
YouTube already has its own content recognition system, which can detect
copyrighted music and videos and block them. It is worth noting however, that
many consider that developing and applying such type of filter would be too
expensive for small businesses or startups while others argue that algorithms
often make mistakes and may remove (and) legally used content.
At this point the following remark should also be made:
There is a serious and alarming issue of unfair competition regarding such
copyright detection filters. As mentioned above,
smaller companies will not
have the financial resources to buy or develop the filters required, while the
€ 10m threshold will “reward startups for staying small and pushing
growth”, preventing possible investment interest. On the other hand,
the obligation to monitor content through expensive software levels, may discourage SCs from investing in new
platforms. Such a broad commitment will not only demotivate investment but may
also discourage a new generation of European entrepreneurs to innovate and
start businesses.
Our Firm’s Comment
We believe
that the scale provided by a completed Digital Single Market will help
companies to grow beyond the EU Internal Market and make the EU an even more
attractive location for global companies as uniform rules are a market opener.
The Digital Single Market will create a fair environment where all companies
offering their goods or services within the EU will be subject to the same data
protection and consumer rules, therefore implying a sense of security. In this new
digital era the new EU Directive on copyright sets new challenges and raises a
series of legal issues and dilemmas for all Member-States. We, therefore,
anticipate with great interest to legally observe how this new Directive will
be implemented by each Member State and the aftermath of such implementation.
