COPYRIGHT DIRECTIVE PUBLISHED IN THE EU OFFICIAL JOURNAL

The copyright reform within the Digital Market, a subject that has been debated at length within the EU since 2016, finally moved on to the next stage after the EU Directive 2019/790 of the European Parliament and of the Council on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (“Copyright Directive”) was published on the 17th of May in the EU Official Journal.

The new Directive is aimed at reinforcing the position of copyright creators and rightholders so that they can negotiate their remuneration for the online use of their content by certain platforms.

WHAT DOES THE COPYRIGHT REFORM MEAN?

The new regulation intends to increase the responsibility level of online platforms with respect to the content published by their users. The well-known articles 11 and 13 of the Directive are the ones that sparked long debates.

Thus, online platforms must obtain the prior approval of successors in titles of protected works (for instance, by concluding a licensing agreement) for uploading works. These licensing agreements should be fair and keep a reasonable balance between both parties. Rightholders must receive an appropriate remuneration for the use of their works and other protected subject matter.

However, given that these provisions should not affect contractual liberty, rightholders should not be obliged to grant authorizations or conclude license agreements.

Nevertheless, although the main objective of the Directive is to increase the responsibility of online platforms, it also provides for some exceptions to the rules (situations in which non-compliance with the obligation to negotiate a licensing agreement is not sanctioned).

Thus, in the absence of the approval of successors in titles, content-sharing service providers will not be held responsible for non-authorized 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:

• Made best efforts to obtain an authorization; and


• Made, in accordance with high industry standards of professional of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which rightholders have provided the service providers with the relevant and necessary information, and in any event,


• Act 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 accordance with point b);

In order to determine whether the service provider has complied with the obligations incumbent upon them, under the above-mentioned paragraph and in the light of the proportionality principle, the following elements shall also be taken into consideration, among others:

• The type, the audience and size of the service and the type of works or other subject matter uploaded by the users of the service; and


• The availability of suitable and effective means and their cost for service providers.

Moreover, the big digital platforms shall grant remunerations to media whenever they use extracts from articles and videos.

The copyright directive also:

• ensures a wider cross-border and online access to content protected under copyright to citizens: the directive will increase the availability of audiovideo works on video-on-demand platforms, it will facilitate digitalization and dissemination of works outside the commercial circuit and will ensure the possibility to reproduce online copies of works of art belonging to the public domain, freely and without running any legal risks.


• grants larger possibilities for the use of content protected under copyright in the fields of education, research and heritage preservation: exceptions related to copyright making this possible were improved and adapted to technological change, in order to ensure online and cross-border use.


• strengthens data economy: new rules on text and data extraction will boost European research and will encourage the development of data and artificial intelligence analysis in Europe.

The Directive will enter into within the 20 days after the publication in the EU Official Journal, namely on the 7th of June 2019.

Romania and other member states can transpose the new rules into their local legislations in 2 years after the publication of the Directive in the EU Official Journal, namely until the 7th of June 2021 at latest.

The new legislative framework approved by the “Copyright Directive” is a general framework, the member states playing a crucial role in its implementation, both in point of rights and obligations to be imposed upon digital platforms, as well as in point of sanctions to be applied in case of infringement.