The EU copyright directive was adopted by the European Council on 15th April 2019, completing its final stage of approval after two-and-a-half years of debate and negotiation.
The Directive on Copyright in the Digital Single Market is an important piece of European Union legislation designed to modernise copyright for the digital age. Now passed, it will help ensure a fairer deal for those working in the creative sector.
The Directive was published on 17 May 2019. By 7 June 2021 all EU member states must have transposed the legislation into their national laws. The Commission is expected to issue guidelines on implementation later this year. Several EU member states have already published their considerations on transposition.
The options for the UK are subject to the details of the withdrawal from the European Union. If we are still in the EU at the point at which we must implement the directive, it will be achieved via “secondary legislation” (Art. 2 European Communities Act). If we are outside the EU without a deal, it will be a political decision for the UK whether to copy the provisions of the Directive and adopt them as UK law using primary legislation. If we are in transition or in an extension period, it all depends on the arrangements made in the withdrawal agreement and the political intention of Government.
Please note the numbering of the articles in the Directive changed in the final text, so that former Article 11 is now Article 15, and former Article 13 is now Article 17, and so on.
This update is taken from Florian Kemple’s briefing to BCC members June 2019.
The Directive has been through a long process. It shouldn’t have been controversial, but there was significant and coordinated opposition across the EU to two parts of the draft Directive:
• Article 11, which introduces a new right for press publishers, and;
• Article 13, which requires certain online content-sharing services that allow users to upload copyright works, such as music and images, to obtain a licence from the rights holders or take measures to prevent their availability.
The campaign against Articles 11 and 13 was characterised by misconception and misinformation, including claims that the directive will end the sharing of hyperlinks and introduce censorship. MEPs were subject to intense, mass lobbying by activists, backed by internet giants who want to preserve their commercial advantage at the expense of creators whose content drives revenue on their platforms.
To find out what Articles 11 and 13 really said, read the British Copyright Council’s “Copyright directive paper 2 – the facts”.
In September 2018 MEPs voted in the second round for the Directive to progress to the next stage, which is where the final text of the Directive will be decided. Talks on this commenced in October 2018, with final text completed in February 2019. It now is waiting to be voted on by MEPs.
At the end of February 2019 the BCC issued a Statement on the EU copyright directive:
‘The EU copyright directive recognises an important international consensus on the challenge facing creativity in the digital age. Notably, this legislation confirms without doubt that content-sharing platforms should be held accountable for the copyright works they make available and from which they profit, and through a range of other provisions encourages transparency and accountability for European creators on whose work a richly diverse internet depends.
The final directive is a compromise following two-and-a-half years of debate, negotiation and intense pressure from those seeking to defend an untenable status quo. The result is not perfect, but it is important progress. However, many will now feel the need to be watchful that where certain protections have fallen short, they will not be used to undermine the original overall objective of supporting a fair and sustainable online future for creativity.
As we look forward to adoption of the directive by the European Parliament, the British Copyright Council is grateful to those who have supported this much-needed updating of EU law and will continue to champion measures, both on- and offline, that properly value copyright for the benefit of all.’
There is a large suite of legislation currently underway in the EU under the heading of the Digital Single Market Strategy. This includes the EU Directive on Copyright and the Digital Single Market which has now been passed. Amongst other things, it includes a section on fair remuneration in contracts of authors and performers and is largely good news for illustrators as it includes:
a. An appropriate level of transparency in contracts.
b. Windfall Clauses. If something does better an expected the illustrator shares in the profits.
c. Use it or Lose it rights. To stop rights being warehoused by commissioners certain rights (dramatisation / merchandising etc) should revert to the creator if they have not been exploited within a certain time period.
All of this is due to be passed as a Bill before we leave Europe (and therefore become European law). We want to ensure that the UK benefits from it, and regardless of the timescale, that it is implemented into UK Law.
We know that the UK is going to have to negotiate some new trade deals and we are working to ensure that our excellent copyright will be a benchmark of great practise and an exportable asset – not something to be bartered.
Again we are working with the BCC and we know we will be closely aligned with other large players in film, music etc. who all rely on copyright to sustain their industries.
British illustration talent is commissioned across boundaries, from the USA, Europe and the rest of the world and we want to make sure there are no barriers to that.
AOI wrote in July 2018 to the Department of International Trade (DIT) supporting the British Copyright Council’s international trade consideration feedback concerning the withdrawal from the European Union following a consultative meeting with the BCC, Intellectual Property Office and DIT.
Points include the importance of consultation on UK’s current copyright system regarding necessary modifications on withdrawal from the EU; that there must be level playing field between individual creators and online content-sharing services and other tech companies; that the UK should improve the streamlining of withholding tax procedures from other countries in trade agreements and that the UK’s strong copyright system be upheld. See the full document: DiT_TradeConsiderations_AsscOfIllus
In October 2018 we responded to the Department of of International Trade consultation on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Government is considering signing up to this, and it is important that copyright protected in any agreements with countries that do not have the UK’s robust copyright regime.
DACS sent a letter to the PM about the issues relating to the CPTPP in November 2018 and AOI was a signatory, along with Association of Photographers and Society of Authors. More details here.
The European Illustrators Forum is a pan European network offering a voice for illustration in Europe. It communicates the values of illustration and image making and furthers exchange of knowledge and critical debate between professional illustrators and their clients across Europe through conferences, exhibitions, research and education.
The AOI is a founding Member of EIF and sits on its Board.