On 6 May 2015, the European Commission announced its 'Digital Single Market Strategy for Europe' (1). This strategy was based on three pillars:
- A better access to online goods and services for consumers and businesses across Europe;
- the creating framework conditions conducive to digital networks and services; and
- a maximum growth potential for the European digital economy (2).
This strategy announced measures concerning, inter alia, access to digital content (3). The Commission would make legislative proposals with a view to 'a modern, more European copyright framework' (4). From the outset, it identified a number of areas of concern, such as cross-border access to content while respecting the value of rights in the audiovisual sector, greater legal certainty for the use of works for research, education, text and data mining, through harmonised exceptions, and the modernisation of the enforcement of rights in the event of infringements on a commercial scale through the 'follow the money' principle (5).
On 9 December 2015, the first wave of legislative proposals followed, on 14 September 2016, the second wave, resulting in five texts, together the 'Copyright package':
- Regulation (EU) 2017/1128 of the European Parliament and of the Council of 14 June 2017 on cross-border portability of online content services in the internal market (6) (“Portability Regulation”);
- Directive (EU) 2017/1564 of the European Parliament and of the Council of 13 September 2017 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 and amending Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (7) (“Marrakesh Directive”), supplemented by Regulation (EU) 2017/1563 of the European Parliament and of the Council of 13 September 2017 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 (8) (“Marrakesh Regulation”);
- Directive (EU) 2019/789 of the European Parliament and of the Council of 17 April 2019 laying down rules on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmissions of television and radio programmes, and amending Council Directive 93/83/EEC (9) (“Broadcasting Directive”); and
- Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC (10) (“DSM Directive”).
The latter in particular has given rise to fierce discussions, including in the media. Internet giants, including GAFA (Google, Apple, Facebook and Amazon) were far from indifferent and unleashed a fierce battle against the Commission's reaction to the outcry for help from the field of copyright and related rights in order to strengthen their position in the digital economy. In particular, the proposals concerning the (then numbered) Article 11 (now 15) on a new right for publishers and Article 13 (now 17) on a 'transfer of value' for user-generated content sharing platforms met with opposition. Apocalyptic slogans such as "the end of the Internet" were not shunned. Nevertheless, the European Commission's proposals stood their ground, albeit with the necessary nuances.
Now reality will show whether the right choices were made. First there will be the transposition round: the directives must be transposed into national law by 7 June 2021 (Article 29(1)). Then there will be an impact assessment of the specific liability regime of Article 17 applicable to 'start-ups' by 7 June 2024, and two years later, by 7 June 2026, the Commission will evaluate the Directive and report to the European Parliament, the Council and the European Economic and Social Committee. In these times of rapid technological development, this promises to provide fresh impetus for exciting discussions in the relatively short term.
(1) COM (2015) 192 final.
(2) Ibid., pp. 3 4.
(3) Ibid., pp. 4 9.
(4) Ibid., p. 6.
(5) Ibid., p. 8.
(6) Pb. L 168, 30 June 2017.
(7) Pb. L 242, 20 September 2017.
(9) Pb. L 130, 17 May 2019.
(10) Pb. L 130, 17 May 2019.