European Directive on Copyright in the Digital Single Market: what it is about and why libraries should care
18 June 2019
On 17 May 2019, after several years of discussion, the European Directive on Copyright in the Digital Single Market was published in the official journal of the European Union. It enters into force on 20 June 2019, which marks the beginning of a two-year period for member states to change their laws in order to meet the objectives of the directive.
The text is the first comprehensive review of copyright in the European Union since the Infosoc Directive of 2001, and may well be the last for another fifteen years. It aims to harmonise copyright in the EU, and to update the copyright framework to the digital world.
The content of the Directive in a nutshell
The Directive contains several provisions that impact cultural heritage institutions directly, namely:
Text and data mining
The directive gives legal clarity for text and data mining activities. Member states will have to adopt an exception applicable to research organisations, with no possibility for rightsholders to reserve this right. All other organisations or individuals, for any purpose, will also benefit from an exception to copyright for text and data mining of legally accessed works, although in this case rightsholders will have the possibility to reserve this right.
Online and cross-border teaching
The Directive establishes that use of copyrighted work in online and cross-border teaching in the European Union will be covered by an exception, unless the conditions are fulfilled for licences to be used.
Preservation of cultural heritage
While many EU member states have an exception for preservation, this now becomes mandatory in the whole Union. The new provision also gives legal clarity for cross-border preservation networks and allows for certain internal copying related to preservation to be carried out under the exception.
Digitization and making available of out-of-commerce works
After the rather unsuccessful efforts to increase access to orphan works, out of commerce works are approached differently in this Directive: an exception to copyright will apply, unless collective management organisations representative of creators in a particular category of work can give licenses. In this case, they will be able to give licenses to cultural heritage institutions for the digitisation and making available of works not only by their members, but also by non-members.
Protection of the public domain
The directive mandates that faithful copies of works of visual art that are in the public domain shall remain in the public domain.
Some other good news beyond these specific articles is that for most exceptions and limitations to copyright, technological protection measures that stop beneficiaries from enjoying them can now be circumvented. Contractual conditions that also stop cultural heritage institutions from benefitting from exceptions and limitations can be overridden.
It is worth noting that the directive has other focuses beyond these cultural heritage-specific articles, which can still have an impact to access to information. This is the case for Article 15 (former article 11) on the protection of press publications concerning online uses, and article 17 (former article 13), on the use of protected content by online content-sharing service providers. In this case, care will be needed to ensure that the safeguards for libraries in the Directive are also present in national implementation.
Libraries in Europe have engaged strongly in shaping this important piece of legislation to ensure that it fulfils its promise of harmonising Europe’s copyright law and updating it to the digital environment. Yet discussions are far from over. Work at the national level will be essential if Europe’s libraries are to get the best of what this text has to offer.
IFLA, working alongside partner library and research organisations, will assist its members in this task. We have established a discussion list for those involved in lobbying on the implementation of this Directive at national level, that we encourage you to join. We will also share guidance on the advocacy process that you can undertake at the national level, and an article-by-article analysis of the Directive’s provisions.
For more information, check the resources page on the EU copyright reform.
Don’t hesitate to get in touch for any questions.