On 1 April 2022, the bill implementing the EU directive on copyright and related rights in the Digital Single Market was finally adopted.
On 1 April 2022, bill no. 7847 (the “Bill”) implementing 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 (the “New Copyright Directive”) was finally adopted[1] after being exempted from a second constitutional vote.
I. Need to adapt the existing copyright framework to the growing digital environment
The New Copyright Directive is intended to modernise certain aspects of the legal framework for copyright and neighbouring rights, in particular to account for (i) rapid technological developments that are continually transforming how protected works are created, produced, distributed and used and (ii) the emergence of new business models and actors.
While the principles in the existing European copyright framework remain sound, the New Copyright Directive reduces uncertainty for right holders and users with respect to certain usage, including the cross-border use of works and other subject matter in the digital environment.
The New Copyright Directive provides for rules to adapt certain exceptions and limitations in copyright and related rights to digital and cross-border environments, and for measures to facilitate certain licensing practices. It also contains rules to facilitate the use of content in the public domain as well as rules on rights in publications, on the use of works or other subject matter by online service providers storing and giving access to user-uploaded content, on the transparency of authors' and performers' contracts and on authors' and performers' remuneration, along with a revocation mechanism for rights that authors and performers have transferred on an exclusive basis.
The New Copyright Directive is advocated by the European Commission but has received criticism from several Member States, including Luxembourg.[2] However, despite these reserves, the Luxembourg legislator has faithfully implemented the New Copyright Directive into Luxembourg law.
II. Faithful implementation into Luxembourg law
The Bill amends (i) the law of 18 April 2001 on author’s rights, related rights and databases, as amended; (ii) the law of 3 December 2015 on certain authorised uses of orphan works, as amended and (iii) the law of 25 April 2018 on the collective management of copyright and related rights and the multi-territorial licensing of rights in musical works for online use in the internal market.
The Bill introduces:
- new exceptions and limitations for author’s rights (i) that apply to reproductions and extractions made by research organisations and cultural heritage institutions in order to carry out, for the purposes of scientific research, “text and data mining”[3] of works to which they have lawful access and (ii) to the reproduction and extraction of lawfully accessible works for the purposes of text and data mining (under certain conditions); and (iii) in order to allow the digital use of works and other subject matter for the sole purpose of illustration for teaching, to the extent justified by the non-commercial purpose to be achieved (under certain conditions) and (iv) in order to allow cultural heritage institutions to make copies of any works that are permanently in their collections for purposes of preservation of such works and to the extent necessary for such preservation.
- the possibility for cultural heritage institutions to use out-of-commerce works subject to the agreement of a non-exclusive licence for non-commercial purposes with a collective management organisation, under certain conditions.
- neighbouring rights (right of reproduction and of making publications available to the public) for press publishers covering online uses of their press publications by information society service providers (e.g. aggregators and media monitoring services). This will give press publishers a fairer marketplace and stronger bargaining power against online services providers. Furthermore, as the authors of contributions, journalists will also be granted an appropriate share of the revenue they generate.
- a new liability regime for online content-sharing platforms. From now on, online content-sharing platforms will have to obtain authorisation from right holders for the content uploaded on their website. If no authorisation is granted, they will need to take steps to avoid unauthorised uploads (e.g. by applying content filters).
- a principle of appropriate and proportionate remuneration in the utilisation agreements of authors and performers, as well as the possibility to ask for additional compensation. Authors and performers should henceforth receive, on a regular basis (and at least once a year), relevant and comprehensive information on the use of their works and performances from the parties to whom they have licensed or transferred their rights, as regards inter alia all revenues generated and all remuneration due. Where the remuneration originally agreed turns out to be disproportionately low compared to all relevant revenues subsequently derived from the use of the works or performances, authors and performers are now entitled to claim additional, appropriate and fair remuneration from the other party. Any contractual provision that contradicts these principles will be considered unenforceable.
[1] The initial implementation deadline for the New Copyright Directive was 7 June 2021.
[2] Council of the European Union, Joint statement by the Netherlands, Luxembourg, Poland, Italy and Finland, 15 April 2019, 7986/19 ADD 1 REV 2 (interinstitutional File: 2016/0280(COD)).
[3] Text and data mining is defined as “any automated analytical technique aimed at analyzing text and data in digital form in order to generate information which includes but is not limited to patterns, trends and correlations.”
ASTRID WAGNER - Partner - IP, Communication & Technology
FAUSTINE CACHERA - Senior Associate - IP, Communication & Technology
