Ariadna Matas
Policy Advisor , Europeana Foundation
About two years ago, the Copyright in the Digital Single Market (CDSM) Directive was adopted, obliging European Union Member States to ‘bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 7 June 2021’. On this date, we take a look at the progress of Member States, and at some of the policy choices they have made.
The CDSM Directive aims to harmonise certain aspects of EU Member States’ copyright legislation and to provide legal certainty to digital and cross-border uses of copyright protected works. More specifically, the CDSM Directive has important provisions that seek to facilitate text and data mining, the use of copyright protected works in digital and online education, digital preservation, the online publication of out of commerce works, and to safeguard the public domain online.
Since its introduction, months of frenetic lobbying and regular updates at the European Union level on the Directive were followed by two much quieter years. In June 2019, the focus moved to the national level, where Member States have been working to adapt their legislation to the objectives of the Directive. The COVID-19 pandemic has shifted priorities and reduced capacity, and relevant transposition guidance has not been delivered, resulting in most Member States having barely moved from square one in the transposition game.
Out of the 27 Member States, only The Netherlands, Hungary and very recently Germany have fully adopted the Directive; France has adopted some of the provisions and some additional legislative steps for the remaining ones; Italy has also gone through some legislative steps and a Government Decree is underway; Austria, Croatia, Cyprus, Czechia, Denmark, Luxembourg and Romania have issued draft laws; and the other fifteen Member States have only made a timid start through for instance a public consultation. Norway will also adopt the provisions in the Directive, whereas the United Kingdom has indicated that it will not be transposing it.
In the meantime, a few things have happened alongside progress at the Member State level. The European Union Intellectual Property Office (EUIPO), in charge of developing a portal for out of commerce works as envisaged in the Directive, has been working and consulting stakeholders to have a first version of the portal available. In the realm of the very controversial Article 17 of the Directive, the Commission held several stakeholder dialogues in view of providing guidance which was only delivered on 4 June 2021. At the same time, the Polish Government requested the annulment of parts of this article to the Court of Justice of the European Union (CJEU). The ruling has not yet been issued, and a decision by the Advocate General is awaited.
As early as 29 December 2020, the Dutch implementation law was published in the official journal, with an indication of its entry into force today. As the first full transposition, its approach is likely to be taken as a reference by other Member States, although the text barely moves away from that of the Directive.
There is one particularly positive policy choice in the transposition text: digital educational activities used in copyright works are covered by an exception and not a licensing scheme. The exception does however not contemplate cultural heritage institutions as beneficiaries.
Stakeholder dialogues, where relevant parties in the discussion will dive deeper into practical questions related to the making available of out of commerce works and the use of text and data mining, have recently started.
In April 2020, the Hungarian government amended their educational exception to cover digital and cross-border uses of copyright protected works, adopted as an emergency measure in response to the COVID-19 pandemic. This was followed by a consultation proposal on the transposition of the rest of the provisions, which were accepted by the Parliament at the end of April 2021.
Germany adopted the draft law transposing the Directive just in time to meet the deadline. While most of the provisions are close to the text of the Directive, there are two unexpected aspects in the realm of out of commerce works: firstly, the (for several reasons unfortunate) decision to subject the exception for out of commerce works to remuneration, which did not make it to the final text, and secondly the (rather positive) clarity that out of commerce works can be displayed on the EUIPO portal.
There continue to be high stakes for the cultural heritage sector in the transposition of this Directive: what could look like small tweaks or additions to the text at the national level has the power of either hampering or facilitating the use of text and data mining technologies, the making available online of out of commerce (including orphan) works, the use of educational material in online settings, or the reusability of public domain material.
While 7 June 2021 was initially seen as the end of a process, it is clear now that copyright conversations at the Member State level have only just started. Engaging in policy discussions remains essential. Find out more about how Europeana supports such discussions and join the Europeana Copyright Community to receive relevant news, discuss policy questions with your peers and get support on working with copyright and cultural heritage.
The information described in this post is based on data collected from the following databases: the Communia DSM Directive Implementation Tracker, the Observatory on the DSM Directive Exceptions & Limitation by the Centre for Intellectual Property Policy & Management, Bournemouth University and the Copyright in the Digital Single Market Directive Implementation - an EU Copyright Reform Resource by CREATe in collaboration with ReCreating Europe.
