Regulatory divergence post Brexit: Copyright law as an indicator for what is to come

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Martin Kretschmer (Professor of Intellectual Property Law and Director of CREATe, University of Glasgow)/

February 19, 2020 /Leave a comment

 

Here we have it. The first instance of regulatory divergence. The UK is leaving the European Union, and already the rules of the single market are starting to break.

In response to a parliamentary question by Labour MP Jo Stevens, Intellectual Property Minister Chris Skidmore said on 21 January that the UK Government had no intention of implementing the EU Copyright Directive, for which the UK Government had voted in the EU Council in spring 2019. There was significant dissent among EU Member States and the Directive would not have been adopted without the UK’s support.

Does this matter? Copyright law may not be what people expected to be the first post-Brexit regulatory fault line. 

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EU States have to implement the requirements of the Copyright in the Single Market Directive in June 2021. 

 

 

EU Copyright Directive may be first signs of break with EU legislation as UK has "no plans to implement it"
16 January 2020

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According to a written answer in Parliament by BEIS minister Chris Skidmore on 16 January "The deadline for implementing the EU Copyright Directive is 7 June 2021. The United Kingdom will leave the European Union on 31 January 2020 and the Implementation Period will end on 31 December 2020. The Government has committed not to extend the Implementation Period. Therefore, the United Kingdom will not be required to implement the Directive, and the Government has no plans to do so. Any future changes to the UK copyright framework will be considered as part of the usual domestic policy process.

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Mixed reactions can be expected to this announcement, as the discussion below examples.

 

New EU Copyright Directive takes another step

May 2019

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The new Directive on copyright in the digital single market was agreed between the Council of the European Union, the European Parliament and the Commission on 13 February 2019 after three days of talks in France. It was then approved by the European Parliament on 26 March 2019 and endorsed by the Council on 15 April 2019. The Directive was published in the Official Journal of the EU on 17 May 2019. 

 

UK Organisations representing the interests of rights holders had spent the last few years putting pressure on MEPs to support the draft Directive.  As long ago as last July (2018) the British CopyRight Council (BRC) issued a statement which is an example of the many such statements. In it the BRC stated that the Directive sought “to make policy fit and fair for the digital era” and was “long overdue; the last update to EU copyright laws was in 2001 — three years before the launch of Facebook, four years before YouTube, five years before Twitter and still in an age when most people enjoyed books, music and pictures and other creative works in purely physical form.”

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The Professional Publishers Association explains:  “The directive seeks to create a comprehensive framework where copyrighted material, copyright holders, publishers, providers and users can all benefit from clearer rules, adapted to the digital era. Importantly, it sets a precedent where tech giants such as Google will have to negotiate licensing agreements with rights holders in order to publish their content. 
“The agreement focuses on the following objectives, grouped together under three categories: A) Adaptation of copyright exceptions/limitations to the digital and cross-border environment
“The directive introduces mandatory exceptions to copyright for the purposes of text and data mining, online teaching activities and the preservation and online dissemination of cultural heritage. B) Improvement of licensing practices to ensure wider access to content
The directive provides for harmonised rules facilitating the:
• exploitation of works that have stopped being commercialised (out-of-commerce works),
• issuing of collective licences with extended effect and
• rights clearance for films by video-on-demand platforms. C) Achievement of a well-functioning marketplace for copyright
The directive introduces a new right for press publishers for the digital use of their press publications. Authors of works incorporated in the press publication in question will be entitled to a share of the press publisher’s revenue deriving from this new right. As regards online content sharing platforms, the directive clarifies the legal framework within which they operate. Such platforms will in principle have to obtain a licence for copyright protected works uploaded by users unless a number of conditions provided for in the directive are met.

British Copyright Council has been urging MEPs to support fair play for creative sectors

The BRC statement explained the position of those seeking to oppose the changes in this way: “Those seeking to stop Parliament’s proposals going forward for debate with the European Council claim a number of fictions, including that the changes will lead to widespread censorship, the stifling of expression and the end of internet as we know it. The facts are more prosaic: the new laws seek simply to give commercial platforms (not non-commercial services, such an online encyclopaedias) an obligation to ensure in-copyright works are exploited legally and in a way that returns a fair rate of reward to their creators and right-holders.”

It continues: “The directive introduces no new restrictions or responsibilities on users — indeed, rather than deterring people from posting material on the web, the proposal for online content-sharing services to obtain a licence from right-holders that covers user-uploads, would increase certainty for those who are otherwise unsure whether they are acting under a legal exception or infringing copyright. This is good for the people who make creative works, good for people who want to use them with confidence and essential for the progress of our cultural and digital economies.

The NMA, representing national, regional and local news media, believes “The current regime generally strikes the right balance in terms of protecting the rights of content creators and the rights of consumers or users. Any significant new exceptions could be highly damaging to the news media industry.”

Particularly appealing to publishers is the inclusion of a Publisher’s Right, designed to ensure that content providers receive fair compensation for the use of their material. Concludes the NMA: “On the UK front, publishers are concerned to ensure that the Government ensures stability and certainty in the IP framework after Brexit.”

However the Directive will of course not have made it through before Brexit D-Day on 29 March…..

Why Europe’s New Copyright Proposals Are Bad News for the Internet

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The proposals aren’t just bad for Google, but for everyone, 

David Meyer argues in Fortune

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By DAVID MEYER  September 14, 2016

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The proposals, argues Meyer,  would allow publishers to try wrangling fees out of

others for any “use of the work”—a dangerously vague term in this context.

What’s more, they’d get to do so for a whopping 20 years after publication.

It’s hard to know whether the large press publishers who lobbied so hard for these measures really think Google will ultimately pay up, or whether their real goal is what happens when it refuses.

Because Google surely won’t pay for indexing their content or reproducing snippets of their text. It can’t—that would be the beginning of the end of its entire search engine business model, which can no longer scale if its links come with a cost.

The other major flaw in the new proposals would also be bad news for smaller players, and for the rights of the public.

Under the e-Commerce Directive of 2000, the operators of user-generated content platforms—YouTube and SoundCloud and the like—are not liable for the content their users upload, as long as they take down the illegal stuff once someone flags it. That directive also explicitly says there can be no laws forcing platforms to generally monitor the content they manage.

 

Full story here

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See also: Digital Single Market

POLICY

Copyright

https://ec.europa.eu/digital-single-market/en/policies/copyright 

Digital Single Market

LAW 4 October 2012

The EU copyright legislation – Useful documents

https://ec.europa.eu/digital-single-market/en/news/eu-copyright-legislation-useful-documents

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