A few days ago we received the news that the Senate has approved the transposition of the European Delegation Law 2019-2020 which, specifically, provides for the Copyright Directive (number 2019/790), which, however, will have to be implemented in Italian law by June 7, 2021.
Without wishing to go into the specific legislative process that led to this result, however, we must highlight how the Government will now have to bring what is provided for in the European Directive into the new Italian legislation on Copyright.
It is necessary to keep in mind that it was the year 2019 when the European Parliament approved the Copyright Directive, known as the Copyright Act. Since then, the directive has generated controversy in many areas, provoking all kinds of opinions and comments.
It has even been argued that the regulation meant the end of Internet, or at least the internet as we know it today. For others, it was the birth of an Internet that was more respectful and fairer to authors (creators) and intellectual property rights holders, as it made it possible to respect their moral and economic rights.
The debate was revived very strongly in the legal community in February when Facebook, in Australia, blocked all links to domestic or foreign media, as the platform was not satisfied with its obligation to pay media publishers.
This was due to the fact that Australia has enacted legislation that mirrors that of the European Copyright Directive regarding the economic rights of publishers and journalists.
The American giant fears that the Australian law could force the platform to pay “potentially unlimited amounts“, according to Facebook executives.
But let’s go back to the examination of the legislation that interests us (we’ll come back infra on the Australian issue).
The European directive, once approved by the Council, set a deadline of two years to be transposed into national law by each member state. So far, only France has done its duty, being the only state that has fully transposed it. All national regulations to be enacted by each member state will have to make the protection and obligations imposed by the directive compatible with respect for freedom of expression (right of information and right of opinion) and freedom of creation of authors.
The key question the European regulation seeks to answer is simple: are digital platforms obliged to pay publishers and media for the use and exploitation of their content? The question seems simple, but it has been shown that the answer is not so simple.
It is true that the directive has already granted publishers the right to be remunerated for the use of content, and it is clear that it aims to strike a balance between the various parties involved: the digital platforms that make large profits by aggregating (using and exploiting) content created by third parties in an entrepreneurial way and the authors or creators who have previously created such content.
The most discussed articles of the directive are Article 15 (ex 11) and 17 (ex 13). The purpose of Article 15 (Protection of publications of a journalistic nature in the case of online use) of Directive 790/2019 is to create a related right for the benefit of publishers and news agencies, recognizing to these entities the exclusive right to authorize (or prohibit) the publication, communication and, in general, the making available to the public of what they publish: journalistic articles, photos, videos. The objective pursued by art. 17 (Use of protected content by providers of online content sharing services) is summarized by recital 61 of the same directive: if on the one hand “online services … offer the cultural and creative sector great opportunities to develop new business models …, they also create problems when content protected by copyright is uploaded without the prior consent of the right holders“. This results in “legal uncertainty as to whether providers of such services perform copyright-relevant acts and must obtain permission from rights holders for content uploaded by their users“. And “such uncertainty affects the ability of rightsholders to determine whether, and under what conditions, their works and other materials are used, as well as their ability to obtain adequate remuneration for said use“.
Worthy of note is what European Commission (EC) Vice-President Margrethe Vestager said, defending the European Copyright Directive and stressing that it is a tool that will allow print publishers to receive adequate payment for the use that companies such as Google or Facebook make of their content.
In a debate at the European Parliament, Vestager also responded to the comment of an MEP who accused the big platforms of abuse of power, in relation to the block imposed by Facebook in Australia which we discussed above.
The Vice President of the European Commission pointed out that, following the debate sparked by the blocking of the dissemination of news from publishers, Facebook has announced that it plans to end in the coming days to block the publication of news in Australia after agreeing with the authorities in Canberra some amendments to the bill to force platforms to pay for sharing content produced by local media, including extending the negotiation period before going through the arbitration process.
Clearly this precedent, although not directly related to the Copyright Directive (since it is based on an Austrian law), has been taken as an example by the doctrine to try to predict what will happen in Europe from June when all States will be obliged to implement the provisions of the Directive itself.
For example, unlike the Australian bill – which obliges Google and Facebook to use a mediator to agree on a price with print publishers if they have not reached an agreement beforehand – the European copyright law, as we have seen, gives the media the “direct” right to ask for a license fee.
In this sense, the commissioner for the internal market, Thierry Breton, harshly criticized the decision of Mark Zuckerberg’s company stating how: “It seems to me really very harmful that a platform takes these measures to protest against the law of a country”, and was in favour of “supporting Australia in this fight” and to confirm the above there are many MEPs who want to introduce amendments that copy the Australian law, arguing that the Copyright Directive is not enough.
European press publishers and Microsoft also called yesterday for more.
“The solution should require payments for the use of print publishers‘ content” by technology platforms and include “arbitration provisions to ensure that fair agreements are negotiated,” they said in a statement.
They are convinced that negotiations with Facebook and Google, which have dominant market power, will not produce fair results unless further regulatory measures are brought forward.
On the occasion of World Intellectual Property Day (April 21, 2021), the European Magazine Media Association (EMMA) and the European Newspaper Publishers Association (ENPA) also made their voices heard and called on all EU member states to adopt the new European Copyright Directive “without delay“.
In a statement , the associations considered the adoption of the related right of newspaper publishers in the new directive, adopted in April 2019, as “a historic step forward,” which “has yet to be implemented in most EU member states.“
“The swift implementation of a strong and effective publishers’ right is an essential precondition for a level playing field in digital markets,” they stressed, recalling that the EU must implement the legislation by June 7 this year.
They noted that, due to the pandemic, Europeans are placing their trust “more than ever” in the digital offerings of newspaper and magazine publishers, so intellectual property rights, including copyright and related rights of newspaper publishers, are, they said, “the fundamental basis” of this trend.
These rights, they argued, “are essential to securing the future of publishing, both in digital and in print, and its fundamental role in press diversity and pluralism.”
The new EU Copyright Directive recognizes a related new right for print publishers to authorize or prohibit online use of their print publications by online service providers for a period of two years .
In addition, the associations said that, with the Digital Markets Act, the EU has a “historic opportunity” to curb the “abusive practices” of “gatekeepers,” a moniker used for large Internet platforms.
“It’s time for gatekeepers to finally pay for their use of publishers’ content,” said the executive director of EMMA and ENPA, Ilias Konteas, who called for “significant improvements” in the Digital Markets Act to achieve this goal.
In conclusion, we can say that the rules laid down in Directive (EU) 2019/790 can have a decidedly innovative impact on all that was online information as we know it to date and definitely needs an agreement with the large Internet platforms to ensure that both publishers and users can be satisfied and guaranteed.
Of course, in the opinion of the writer, the time for the realization of a mechanism that is able to respect all the interests at stake can not be considered in the short term; this observation comes from the reflection that the legislation on the rights of musical authors (from which the copyright legislation seems to take example) has delayed several years to ensure a free market that could satisfy all the actors at stake or, better said, is only now after decades of debate finding the right solutions.
But since we are talking about the Internet, let’s hope that the speed is higher.