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Digital Copyright Directive Published…and Already the Subject of Complaint

The Directive on Copyright in the Digital Single Market (the Directive), has now been published in the Official Journal, and will enter into force on Friday 7 June 2019.

EU member states have two years in which to transpose the Directive (which is now officially Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC).

As we have previously discussed on the blog (in our pieces here, here and here), the progress of the Directive has been anything but smooth, with six countries – Poland, Finland, Italy, Luxembourg, the Netherlands and Sweden – voting against it in the final stages.

However, other countries including, France, Germany and the UK, did support it, and the current UK Culture Secretary Jeremy Wright, speaking recently at the Professional Publishers’ Association, acknowledged that: “while the Directive is not perfect, it is an important modernisation of the copyright framework for the digital age. Just as we do with all legislation, [the UK] will work closely with those affected to make sure we implement it in the right way”.

This seems to suggest that whatever the position in relation to copyright in any final withdrawal agreement for the UK’s exit from the European Union, the Directive will be transposed and enter into UK law. Given the well-reported problems with the wording of the Directive, it will be interesting to see whether the government takes a more circumspect approach to the implementation of the Directive.

However, not all member states feel this way, and indeed, Poland has submitted a formal complaint to the European Court of Justice.

Under Article 263 of the Treaty on the Functioning of the European Union, a Member State can challenge the legality of any EU legislation on four grounds: lack of competence; infringement of an essential procedural requirement; infringement of the Treaties; or infringement of any rule of law relating to their application, or misuse of powers. Although the text of Poland’s complaint has not yet been released publicly, official discourse suggests that Poland are relying on the fourth ground of opposition.

For example, it has been reported that Poland’s Deputy Foreign Minister Konrad Szymanski, speaking to Polish news network TVP Info, argued that the new legislation could be “analogous to preventive censorship, which is forbidden not only in the Polish constitution but also in the EU treaties.” Alongside the announcement to file this complaint, Polish Prime Minister Mateusz Morawiecki also tweeted that the legislation threatens freedom of expression.

Their concerns appear to relate to Article 17, which whilst confirming that its application should not ‘lead to any general monitoring obligation’ (Article 17(8)), does require online content-sharing service providers, such as Twitter and YouTube, which host user-generated content, to take a proactive approach to the protection of copyright works by using ‘best efforts’ to search for, remove and prevent the uploading of infringing content where they have been unable to obtain a licence for it. The risk that Poland seems to have identified is that this will lead to the over filtering of potentially infringing content.

© Copyright 2019 Squire Patton Boggs (US) LLP

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About this Author

Carlton Daniel, intellectual property and technology lawyer, London, Squire Patton Boggs
Partner

Carlton Daniel is a partner in our Intellectual Property & Technology team based in our London office. His practice incorporates the full range of specialist advice in the advertising, marketing and media sectors, and he handles both contentious and non-contentious matters. His practice ranges from advising on intellectual property rights (including trade marks, designs, copyright and confidential information) to commercial contracts, licensing, brand endorsement, sponsorship, product placement, privacy, defamation, confidentiality, data compliance and advertising...

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