Copyright Directive transposition still lagging despite infringement procedures

[Shutterstock / kentoh]

The first anniversary of the deadline for transposing the EU’s controversial new Copyright Directive into national legislation is less than two months away and only 12 member states have complied so far.

Just three EU countries – the Netherlands, Hungary and Germany – had fully transposed the directive by the deadline on 7 June 2021.

Malta did it a few weeks later and on 27 July 2021, the Commission initiated infringement proceedings against 23 others over the delay, sending them each a letter requesting information about the details of their implementation plans. 

Since that point, and almost three years after the directive entered into force at the EU level, only twelve EU countries have incorporated the measure into their national bodies of law, with Austria, Croatia, Estonia, France, Ireland, Italy, Spain, and Luxembourg doing it only after the Commission’s reprimand.

Denmark has partially implemented the directive, transposing Articles 15 and 17 before the deadline, but the codification of the remainder of the legislation into national law remains outstanding.  

The Directive reforms the bloc’s approach to copyright, largely to reflect the rise of online platforms and the implications of this for publishers and content creators. 

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Rates of progress have varied greatly. While Luxembourg only just joined the ranks of those who have completed the process, finalising the transposition at the start of this month, in countries such as Sweden and Finland, implementation is not expected until at least the summer. 

The UK has also ruled out any adoption of the directive, responding to a parliamentary question on the subject in 2020 by saying it had “no plans” to implement it and was not required to do so under the Brexit withdrawal process.

A number of the directive’s provisions have proved particularly controversial. Article 15, which deals with the issue of “neighbouring rights”, introduces the right for publishers to be fairly remunerated by platforms for the reuse of their content. 

The platform-publisher negotiations this necessitates continue to cause considerable angst in France, the first country to transpose this provision. While some deals have been reached between outlets and tech giants, with French publishers announcing their intention to launch a collective body for negotiation late last year, tensions remain. 

Last July, for instance, the French competition authority fined Google a record €500 million for failing to negotiate with publishers “in good faith”. 

Google fined €500 mln for lack of 'good faith' in negotiations with French press

The French competition authority has slapped a record €500 million fine on Google for not having negotiated “in good faith” with news publishers and agencies on neighbouring rights – the remuneration for the reuse of copyrighted content they are entitled to.

When it comes to Article 15, Aurore Raoux, EU policy manager at News Media Europe, told EURACTIV that “member states need to continue efforts to transpose as quickly as possible, to provide press publishers with a legal basis for negotiations”.

Article 17 of the directive has also emerged as a sticking point. The provision shifts the liability for unlicensed copyrighted content from users onto platforms, meaning that, unlike under the previous rules, platforms would be responsible for ensuring that they are not hosting this material.

Concerns over the implications of using automated upload filters to enact this, among other aspects of the bill, led to protests in Austria, Germany, Poland, Portugal, and Sweden in 2019. 

While the implementation process has been very slow, member states are not solely to blame, former MEP Felix Reda told EURACTIV. 

Continuing complications over Article 17, in particular, are in part the reason for the lag in national-level implementation, Reda said, describing the provision as “internally contradictory” in its requirement that platforms block copyright-infringing content from being uploaded while also ensuring that legal content is not removed. 

Due to this complication, many member states ended up waiting for guidance from the European Commission on how it should be implemented, but this was only published a few days before the implementation deadline. 

“The transposition was seriously delayed across Europe due to various factors: the pandemic, new consultations at the national level and waiting for the Commission’s guidelines on Article 17”, said Raoux. “Such guidelines came just before the transposition deadline.”

As a result, Reda said, “the majority of countries have tried to bypass the problem by simply transposing Article 17 word-for-word into their national laws, but that doesn’t solve the problem because it doesn’t really tell you what the platforms should actually do”. 

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[Edited by Luca Bertuzzi/Zoran Radosavljevic]

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