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EU Parliament Approves Heavily Disputed Copyright Directive

On March 26, the parliament of the European Union approved the “Directive on copyright in the Digital Single Market”, one of the most heavily disputed legislative acts in EU history. The Directive now has to be approved by the member states in the European Council, which is usually a formality (and will possibly happen on April 9).

First published as a draft in 2016 as one of the first activities in the EU’s Digital Single Market strategy, the Directive has become infamous in recent months due to the almost unparalleled controversy about, mainly, its Articles 11 and 13 (which in the final text became Articles 15 and 17). These provisions introduce a new neighboring right of press publishers for the online use of their publications by news aggregators such as social media platforms and search engines (Article 15), and oblige commercial website providers that allow users to upload and share content to take steps to prevent the unauthorized upload of copyrighted material (Article 17).

In particular Article 17, criticised by adversaries as an “upload filtering mandate” and “internet censorship”, had mobilized fierce opposition by internet companies, free speech activists and internet users, culminating in protests and demonstrations in cities such as Berlin and Munich before the Parliament vote. Proponents of the Directive, among them movie studios, record labels and other content owners as well as collecting societies, see it finally closing the “value gap” between rights holders and platforms, and argue that tech companies were previously held to only the lowest standards of diligence.

In any case, the Directive is likely to mark a significant shift from the currently predominant copyright policy of “notice and take down”, which is also in place in the United States.

The Directive was approved by 348 votes in favor, 274 against (and 36 abstentions), in the form of the compromise reached February 13 in the last trilogue negotiations – including Articles 15 and 17. Under Article 17, “online content sharing service providers” are liable for unauthorized uploads of copyright-protected content unless they can prove that they have made best efforts, first, to obtain a license for such content, and second, to ensure that content is unavailable if they have been advised accordingly by rights holders. Many say the only way this latter obligation (from which new platforms, online for less than three years, with an annual turnover < EUR 10 million are exempt) can be satisfied is by using an upload filter, even if the Directive does not specifically require it.

The Directive also establishes an EU-wide right of authors and performers to receive appropriate and proportionate remuneration for exclusive licenses, and to this end they also have the right to ask, at least once a year, for disclosure of information on the exploitation of their works from licensees or sub-licensees.

Assuming the Directive will be approved by the European Council, member states will have two years after official publication to implement the Directive into national laws. It remains to be seen how they will use the discretion left by the Directive.

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About this Author

Viola Bensinger, Greenberg Traurig Law Firm, Germany, Cybersecurity Litigation Attorney
Partner

Viola Bensinger chairs the Technology Practice as well as the Litigation Practice in Germany. She advises clients from the technology, media and healthcare industries.

Within the technology sector, Viola advises international internet, technology and healthcare companies in the areas of digital products, e-commerce, electronic payment, data protection, software licensing, (IT-) outsourcing as well as digital media.

49 -030700-171-150
Dr. Laura Zentner Media & Tech Attorney
Senior Associate

Laura Zentner focuses her practice on the media and the technology sectors with an emphasis on copyright and entertainment law. Laura has particular experience in large-scale outsourcing transactions.

Her experience also includes the areas of production, funding, financing and distribution of films, TV programs and other audio-visual content. She advises on the structuring of national and cross-border co-productions, financing and public funding, and other contractual matters. In addition, Laura advises on general copyright and collecting society issues, as well as youth protection, the law of the Internet, and insolvency. She also represents clients from the media sector in contentious matters.

Prior to joining the firm, Laura worked for Olswang in Germany for three years after acting as Interim Legal Counsel (German Speaking Territories) for an international media company. During her time with Olswang Laura was seconded to the legal department of the German Federal Film Fund and an international technology company. In 2016, Laura was also seconded to support the legal department of a multi-channel network and producer of web videos.

Concentrations

  • Copyright law

  • Content production, financing and funding/subsidies

  • Media and Technology

  • eCommerce

+49 30.700.171.180