The 2019 Directive on Copyright in the Digital Single Market: Some progress, a few bad choices, and an overall failed ambition
Common Market Law Review
NL : Sijthoff Amsterdam
979 - 1030 p.
After four years of fierce debate, the EU directive on copyright in the digital single market was finally adopted in April 2019. The legislative text aims at adapting copyright to the digital world, remedying to some gaps and uncompensated uses of works and other subject matter and enhancing some valuable uses through new or reaffirmed exceptions. Two provisions have been particularly contested. The article 15 creates a new IP right benefitting press publishers in their online news in an attempt to force Google News and similar platforms to remunerate their use. The article 17 requires video sharing platforms, such as YouTube, to get a license for any copyrighted content uploaded by their users or, by default, to filter such content when requested by rights owners. But the directive has much more to offer and pursues an ambitious agenda, beyond its incompleteness, inconsistencies and defaults. More fundamentally, this directive marks the transition of the EU intervention mostly to harmonise existing national rules and to strengthen the rights of its creative sector, towards a genuine regulatory actor that purports to better organise a thriving European market and a fair society for creations, culture and information. It remains to be seen if the measures laid down by the directive are fit for that purpose. This paper analyses all articles of the directive in three parts: (1) the adaptation of exceptions to better satisfy digital needs, including the new exception for text and data mining; (2) the provisions aiming at enhancing an EU-wide access to creative content; and finally, (3) the provisions pursuing a well-functioning marketplace for copyright, that aims at restoring (perceived) failures or unfairness of current balances between the different stakeholders. This last part contains the most contentious provisions of the directive, i.e. the news publishers' right and the new liability regime of video sharing platforms, but also it most promising ones related to a better contractual protection of authors and performers.