Abstract
The European Union directive on the digital single market aims to address ongoing concerns regarding online content and media. The directive seeks to promote innovation, protect the interests of creators, and establish a balance among the various stakeholders involved. By clarifying responsibilities, the EU aims to create a more transparent and accountable digital environment.
The digital single market aims to facilitate copyright laws.The laws that are enshrined resolve the problems faced in the current digital world. The articles discusses notiion of fair compensation, bridging value gap, setting limitations. Additionally, the EU discusses several provisions that facilitate dispute resolution while imposing liability on the relevant parties. Although the UK government has expressed intentions to support individuals and creators within this new digital economy, these intentions are not adequately reflected in the current legal frameworks. This disparity raises questions about the effectiveness of existing laws in fostering a truly inclusive and equitable digital marketplace
The aim of this paper is to review the UK’s approach to the DSM Directive and analyze the impact of the EU’s copyright reforms on national legislation. This paper delves into the nuances of the provision and is derived from the directives and statutes. It introduces measures to modernize copyright for the digital age, addressing issues like content accessibility and creator compensation. It highlights the need for improvements in the digital single market. However, the government’s intentions to support individuals do not seem to be reflected in the existing laws.The paper proposes certain improvements that could be adopted and discusses their potential impacts and consequences.
Ultimately, it argues that careful implementation of the DSM Directive is essential to avoid unintended consequences and to create a balanced, fair, and inclusive digital market that benefits all stakeholders.
Keywords: Copyright, EU laws, Digital Single Market , Online services, Technology Protection Measures.
1.Introduction
The transaction which ones were within the territory of a single state have evolved to global scales with the help of the digital market. The numerous legal transaction in this field attracts the need for uniform governance. This need has been felt in the field of intellectual property concerning copyrights. The Europe Union acknowledging this need, has advocated for a digital single market that focuses on “ Harmonization” “ and “uniformity of rules”.
The EU legislature adopted Directive 2019/790 on copyright in the Digital Single Market in 2019. The implementation of this Directive by Member States has become one of the most significant advances in recent EU copyright history and continues to be at the centre of the discourse whilst the provisions continue to be debated, transposed, and disputed.CDSM Directive was intended to launch a profound reform of copyright rules on several fronts, as a sort of epitome of the overall objectives announced by the Juncker Commission in its Digital Agenda. Aligning with the goal of consolidating a Digital Single Market, the Directive lays down the specific targets:
– adapting exceptions to digital and cross-border environment
– ensuring wider access to content
– achieving a well-functioning marketplace for copyright.
The European Commission is adapting EU copyright rules to new consumer behaviours in a Europe which values its cultural diversity.
Digital technologies have radically changed the way creative content is produced, distributed and accessed. Copyright ensures that authors, composers, artists, film makers and other creators receive recognition, payment and protection for their works. It rewards creativity and stimulates investment in the creative sector. Thirty-three sectors of the EU economy are considered copyright-intensive, accounting directly for over 7 million jobs, or 3% of employment in the EU.
2.Research methodology
This study employs a qualitative research methodology to explore the relationship between copyright law and the Digital Single Market, focusing on EU directives and UK legislation. The research methodology consists of two primary approaches:
2.1. Document Analysis
The first approach involves an in-depth analysis of primary legal documents, such as EU directives, UK legislation, and relevant policy reports. This includes:
The EU’s regulatory framework for copyright and neighbouring rights (acquis) consists of:
- Directive on the harmonisation of certain aspects of copyright and related rights in the information society (‘InfoSoc Directive‘), 22 May 2001
- Directive on the legal protection of computer programs (‘Software Directive‘), 23 April 2009
- Directive on the enforcement of intellectual property right (‘IPRED‘), 29 April 2004
- Directive on the legal protection of databases (‘Database Directive‘), 11 March 1996
- Directive on the term of protection of copyright and certain related rights amending the previous 2006 Directive (‘Term Directive‘), 27 September 2011
- Directive on certain permitted uses of orphan works (‘Orphan Works Directive‘), 25 October 2012
- Directive on collective management of copyright and related rights and multi-territorial licensing of rights in musical works for online use in the internal market (‘CRM Directive‘), 26 February 2014
- Directive on certain permitted uses of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled (Directive implementing the Marrakech Treaty in the EU), 13 September 2017
- Regulation on the cross-border exchange between the Union and third countries of accessible format copies of certain works and other subject matter protected by copyright and related rights for the benefit of persons who are blind, visually impaired or otherwise print-disabled (Regulation implementing the Marrakech Treaty in the EU), 13 September 2017
- Directive on copyright and related rights in the Digital Single Market (‘DSM Directive‘), 17 April 2019
2.2. Literature Review
The second method involves conducting a comprehensive literature review of academic articles, books, policy reports, and case studies related to copyright law in the digital age. The literature review will help contextualize the legal documents within broader scholarly debates, particularly those concerning the impact of digital technology on intellectual property rights, the evolution of the DSM, and the consequences of Brexit on UK copyright law.
3. Digital single market
It is well known that digital technological advancement and internet is shaping our world, the European Commission wants to make the EU’s single market fit for the digital age – moving from 28 national digital markets to a single one.
EU citizens and businesses have often faced barriers when using online tools and services. These barriers mean that consumers have restricted access to some goods and services, businesses cannot reap all benefits from digitisation, and governments and citizens cannot fully benefit from this digital transformation. The Digital Single Market opens new opportunities, as it removes key differences between online and offline worlds, breaking down the barriers to cross-border online activity.
The Digital Single Market strategy was adopted on 6 May 2015 and is one of the European Commission’s 10 political priorities. It is made up of three policy pillars:
1. Improving access to digital goods and services
2. An environment where digital networks and services can prosper
3. Digital as a driver for growth
4. The copyright directive
Contrary to the Infosoc Directive, the DSM Directive is a long piece of legislation; it contains 86 recitals and 32 articles. It is obvious that the European Parliament and the Council (as well as the Commission) strived to adjust to claims coming from many quarters, including the main findings of the Court of Justice. It is divided into five titles: general provisions (I), measures to adapt exceptions and limitations to the digital and cross-border environment (II), measures to improve licensing practices and ensure wider access to content (III), measures to achieve a well-functioning marketplace for copyright (IV), and final provisions (V)
In terms of substantive provisions, the DSM Directive is rather heterogeneous and lays down measures to:
- Adapt exceptions and limitations to the digital and cross-border environment. To this end, the Directive introduces mandatory exceptions or limitations for text and data mining (TDM), use of works and other subject matter in digital and cross-border teaching activities, and preservation of cultural heritage.
- Improve licensing practices and ensure wider access to content. To this end, the Directive provides a framework for the use, by cultural heritage institutions, of out-of-commerce works, measures to facilitate collective licensing, access to and availability of audiovisual works on video-on-demand platforms, and a provision on works of visual art in the public domain.
- Achieve a well-functioning marketplace for copyright. To this end, the Directive introduces a related right in favour of press publishers for the online use of press publications and allows member states to provide that publishers are entitled to receive a share of the compensation due for uses of third-party works under available exceptions or limitations. It also establishes a framework governing certain uses of protected content by online services, and mandates fair remuneration in exploitation contracts of authors and performers.
5. Key provision
The InfoSoc Directive (Directive 2001/29/EC) forms a cornerstone of the EU’s copyright framework, predating the DSM Directive and establishing fundamental principles for copyright protection in the information society.
The DMCA establishes a notice-and-takedown procedure that requires Online Service Providers (OSPs) to “expeditiously remove or disable access to” any content upon receiving a notice from the rights holder that identifies and locates the material. This system allows rights holders to unilaterally censor content on the Internet without the need for judicial oversight, giving them significant power that they do not have in many other contexts. Furthermore, the system also protects user rights when their content is claimed and taken down, as it provides the alleged infringer with the opportunity to submit a counter-notification. This counter-notification allows them to explain why the content should not be considered infringing on protected rights.
The below mentioned articles are some of the key provisions of the directive. The following articles are discussed in detail to further elaboarte the essential idea and its impact.
| Article | Objective | Imapct and consequence |
| Article 5 InfoSoc Directive | It applies to all copyright subject matter, except software and databases also regulates related rights | The InfoSoc Directive indicates a predominance of private ordering over public policy. |
| Article 6 InfoSoc Directive | Member States to provide adequate legal protection against the circumvention of effective Technological Protection Measures , i.e. devices or components aimed at restricting unauthorised access to or use of works. | In such a “technology plus contract” scenario, all exceptions can be set aside. As we shall see, this special rule does not apply to the new exceptions in the DSM Directive. |
| Article 3 and Article 4 InfoSoc Directive | provides an exception for acts of TDM purposes of scientific research – covering both natural and human sciencesArticle 4 sets forth an exception for reproductions and extractions of lawfully accessed works/subject matter for the purposes of TDM | Both TDM exceptions are narrow in scope and suffer from limitations that may exclude many important applications in this domain. |
5.1 Impact and Analysis
Article 15
Article 15 sets forth the new related right for press publishers, labelled by some critics during the legislative process as the “link tax” provision.
This aims to obtain fair compensation from online platforms that use their content. This right enshrines rights to either authorise or prohibit online reproduction or making available of their press publication by information to service providers. This does not extend to private or non-commercial use by individual users, hyperlinking or very short extracts.
Article 16 introduces a claim for fair compensation for publishers. It applies to publishers in general, not just of press publications, but also of books, scientific publications and music publications, as a response to Reprobel judgment.
Critics argue that the provision gives more power to the media conglomerate and creates power disparity to smaller players. It is not clearly defined and does not correct the imbalance that already persists.
Article 17
Article 17(1) of the DSM Directive states that a service provider “performs an act of communication to the public or an act of making available to the pub lic . . . when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.”
It follows OCSSPs(online content-sharing service providers ) to first obtain a license from the rightsholders, P to “communicate” or “make available to the public” works that are protected, or if not, become subject to direct liability for copyright infringement of its user-posted content.
OCSSPs are now considered directly liable for copyright-infringing content that users upload. This means that if a platform allows users to upload and share copyrighted material, the platform itself is responsible for ensuring that content is legally sound
To avoid this liability, OCSSPs must make “best efforts” to get permission from the copyright holder to host the content. If they can’t get permission, they have to try their best to block unauthorized content and act quickly to remove infringing content when they are notified. They also need to try to prevent users from uploading that content again.
Article 18 of the DSM Directive aims to ensure fair and proportionate remuneration for authors and performers (excluding software authors) who license their works. While lump sum payments are allowed, they shouldn’t be the norm. Member States have some leeway in implementing this principle, as long as it aligns with EU law. Essentially, this provision seeks to address the “real value gap” in copyright by promoting fairer deals for creators in exploitation contracts.
5.2 Lack of action
In 2019, the European Parliament and the Council adopted Directive 2019/790 (the DSM Directive) to regulate copyright and related rights in the Digital Single Market (DSM). This legislation aimed to enhance protection, simplify rights clearance, create a level playing field for content exploitation, resolve uncertainties, and ensure a fair marketplace for protected content. The deadline for transposing the directive into national law was 7 June 2021, but most EU Member States failed to meet this deadline. The Netherlands was the first to fully transpose the directive, but other countries were still in the early stages of the process.
Significant changes have occurred in Europe and globally since 2019, including Brexit and the COVID-19 pandemic, both of which have contributed to delays in the transposition process. In response to these developments, the European Commission held consultations and dialogue meetings to clarify the application of Article 17 of the DSM Directive, a key provision concerning online platform liability. The Commission’s guidance, released in June 2021, is non-binding but will influence how national courts handle disputes. However, the guidance’s interpretation is subject to the Court of Justice of the European Union (CJEU).
Additionally, two CJEU rulings are anticipated, one concerning the relationship between the InfoSoc Directive and Article 17 of the DSM Directive, and the other regarding Poland’s challenge to the validity of Article 17 based on freedom of expression concerns. These rulings will impact the interpretation and application of the DSM Directive.
6. Suggestion
1. Clarification and harmonization : The Directive ought to be revised to include a counter-notification process for users who feel their content has been unjustly taken down. This change would allow users to challenge such removals and potentially reinstate their material when warranted. Furthermore, it is crucial for the EU to define clear standards for the roles and responsibilities of both active and passive intermediaries. Establishing this clarity would promote a more equitable copyright enforcement framework, ensuring that intermediaries are not excessively held liable while still safeguarding the rights of copyright owners.
2. Press Publishers’ Right and Market Concentration the press publishers’ right should be accompanied by safeguards that ensure the fair distribution of revenue among smaller publishers and content creators i.e, establish a more equitable revenue-sharing framework.
3. Compare the DSM Directive with Alternative Models: Compare the DSM Directive’s approach to copyright with alternative models that prioritize public policy considerations, such as fair use or open access. Evaluate the effectiveness of these alternative models in achieving similar goals, such as promoting creativity and innovation while ensuring fair remuneration for creators.
4. The EU should determine a clear standard for active and passive intermediaries, rather than making knowledge the trigger. Rather than seeking harmonization at an internal EU level, the Commission should shift their focus on achieving a copyright liability regime that more closely harmonizes copyright law at a global level since both intellectual prop erty and the digital age have a global reach that transcends borders.
7.Conclusion
While the DSM Directive represents a significant step in aligning copyright law with the digital age, its implementation must be handled carefully to prevent unintended consequences. The European Union’s directive on the Digital Single Market aims to address concerns related to online content and media by promoting innovation, protecting creators’ interests, and balancing stakeholder needs. The directive introduces a stricter liability regime, particularly through Article 17, which moves away from the traditional “notice and takedown” approach and may impose proactive monitoring obligations on internet intermediaries. While this shift may benefit rightsholders and attempt to close the value gap, it raises significant concerns about users’ rights to access and use copyrighted content, as well as issues of transparency and due process. The implementation of the directive in member states is crucial to mitigating these risks and ensuring a regulatory environment that supports online creativity for all stakeholders, rather than just industry interests.
The provisions on the press publishers’ right and OCSSP liability should be refined to ensure that they do not inadvertently harm smaller players in the market or infringe on fundamental rights. By developing more equitable revenue-sharing models and ensuring transparent content moderation, the EU can foster a fairer, more balanced digital ecosystem that benefits all stakeholders, from large publishers to independent creators and platforms. The ongoing legal discourse will shape the future of the Directive and determine its ultimate success in creating a truly inclusive Digital Single Market.
KRUTIKA PATIL.
4TH YEAR, BBA.LLB, REVA UNIVERSITY.