Copyright conundrums

Following on from our previous blog, the European Parliament has voted through the final draft of the European Union Directive on Copyright in the Digital Single Market (the Directive).

Having been mired in controversy for some time, the latest version passes with sixteen votes in favour and nine against. It is worth noting that the Directive is still in draft form but it now becomes ever closer to being passed into law. For the Directive to come into full force, it will need to be put to a final vote before all 751 Members of the European Parliament, likely in early April 2019.

We have previously discussed why some of the provisions are controversial but by way of recap, of key interest are likely to be:

·        Article 11: which allows copyright owners the ability to demand fees each time a third party (including news aggregators such as Google News) link to any of their content. Proponents say this just allows content creators to be fairly compensated for their work; opponents say this will lead to copyright trolls and ultimately a reduction in freedom of expression; and

·        Article 13: which would force platforms who upload content (think Facebook and YouTube) to put technical measures in place to stop users from uploading copyright content. Whilst many in the music industry have welcomed this provision, it is also opposed by others who believe it would be an unrealistic burden on smaller sites effectively forcing them to shut down completely.

The two camps are already entrenched and the latest draft is likely to do little to change either sides’ opinion. However, of equal interest are the latest developments as regards some other provisions in the Directive: Articles 14 through to 16 in particular. These are undeniably good news for rights holders.

In particular, the current wording of Article 14 provides that authors and performers who license or transfer their work should receive “appropriate and proportionate remuneration for [its] exploitation”. There is also a so called “transparency obligation”, the right to request and receive regular updates regarding the exploitation of a work which will no doubt help inform how ‘appropriate and proportionate’ recompense is calculated.

The Directive will also not only set the stage for future management of copyright but also extends into contracts that have already been signed: the current wording of Article 15 allows for a “contract adjustment mechanism” in existing agreements, a provision which would allow authors and artists to renegotiate a contract if the original remuneration terms were disproportionately low to the revenue generated by their work.

Finally, the wording of Article 16 includes the “right of revocation” a so called ‘use it or lose it’ provision whereby a work can be reclaimed (partly or in whole) from a licensee or transferee if that person has failed to exploit it. If the Directive is ratified, it will be interesting to see how the case law develops around this Article in particular.

Stay tuned for further developments from Briffa: the Directive has passed through a rocky road to its last hurdle; it will be interesting to see how the Members of the European Parliament finally vote in the coming months.

Written by Tom Synott, Solicitor