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In September 2016, the European Commission proposed a set of rules aimed at modernizing copyright regulations and bringing them into line with the digital single market. This included a proposal for a new directive on copyright in the digital single market.

After a first failed vote before the summer and after making a series of amendments, last Wednesday, the European Parliament approved its negotiating position on the final proposal for the directive with 438 votes in favor, 226 against and 39 abstentions. This was not the adoption of the directive itself, as certain media outlets have wrongly reported—this will require completing a series of milestones specified by EU legislative procedure—but it is a crucial step bringing the new directive closer to final approval.

Like all the previous steps in the procedure, yesterday’s vote was closely watched not only by the operators who might be affected by the new regulations but also by public opinion. Diametrically opposed opinions were posted on various social media under the hashtag #SavetheInternet: for some, the proposed directive is an apocalypse that will usher in the end of the internet as we know it and an unwarranted expansion of intellectual property rights; for others, the proposal merely seeks to fight gaps in the protection of copyright holders in the online environment and to ensure higher and better compensation for authors.

The proposed directive addresses certain aspects of intellectual property rights in a digital world. To name just a few: the introduction of new limitations on and exceptions to intellectual property rights for (i) text and data mining in the field of scientific research, (ii) the use of works and subject matter in digital and crossborder teaching activities, and (iii) for preservation of our cultural heritage; a new mechanism for negotiation between the owners of audiovisual rights and their potential users; and legal deposit in the framework of the European Union.

However, these and many other features of the proposed directive have been completely overshadowed by three new changes that, for more or less obvious reasons, immediately caught the attention of members of parliament, the media and critical users. The following three changes have been significantly moderated following amendment by the European Parliament:

  1. First, for the first time, the directive recognizes a new copyright-related right for press publishers, to last for five years. This new right (i) addresses a long-standing claim by publishers and will co-exist with copyright of the works included in those publications, and (ii) seeks to ensure compensation for publishers for use of their publications made by news aggregators and other information society service providers.
  2. Second, the proposed directive requires the Member States to recognize a copyright-related right for the organizers of sporting events. This new right, unprecedented in EU law and absent from the initial versions of the proposal, would entitle a new group of right holders—the organizers of sporting events—to prohibit or allow the reproduction or communication to the public of the events by third parties, and its scope is still to be determined.
  3. Third, the directive holds service providers directly responsible for the online exchange of content uploaded to their platforms by their users and, therefore, compels them to make fair and appropriate licensing arrangements with right holders. In addition, service providers would be obliged to take certain legal and technical measures to try to ensure that users do not take advantage of their services to unlawfully share protected works and subject matter.

 

The scope of these changes and the other changes contained in the proposed directive require much more extensive consideration than is possible in this post. Therefore, when the directive is finally approved, we will deal with its most important features separately, as they will in various ways represent a turning point for the protection of intellectual property on the internet in the context of the European Union.

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pablo.ramirez@cuatrecasas.com

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