Europe's Copyright and SatCab Directives become the law of the Union

By Emmanuel Legrand

Two major pieces of regulation that will significantly update European Union's copyright framework have been adopted by the ​Council of the European Union in Bucharest on April 15: the Copyright Directive and the Satellite and Cable Directive. The SatCab Directive is meant to facilitate the circulation of audiovisual content throughout the Union, while the Copyright Directive will “ensure adequate protection for authors and artists, while opening up new possibilities for accessing and sharing copyright-protected content online throughout the EU”, according to the European Council.

  “With today's agreement, we are making copyright rules fit for the digital age," said European Commission President Jean-Claude Juncker. "Europe will now have clear rules that guarantee fair remuneration for creators, strong rights for users and responsibility for platforms. When it comes to completing Europe's digital single market, the copyright reform is the missing piece of the puzzle.”

  In total, 19 countries supported the Copyright Directive, while Italy, the Netherlands, Poland, Sweden, Finland and Luxembourg voted against the Directive, and Belgium, Estonia and Slovenia abstained. In a joint statement, the opposing nations, excluding Sweden, said “the final text of the Directive fails to deliver adequately on the above-mentioned aims.” They added that the “Directive does not strike the right balance between the protection of rights holders and the interests of EU citizens and companies,” and "risks to hinder innovation rather than promote it and to have a negative impact [on] the competitiveness of the European digital single market.” 

 

Double final victory!

  French MEP Jean-Marie Cavada, a member of the European Parliament's legal committee (JURI), and a supporter of the Directives, welcomed the passing of both legislation on Twitter: "Double final victory! EU's Council has also adopted #CabSat Directive. #Copyright and #CabSat establish a legal protection of content like never before!" In another tweet, Cavada wrote: ‏"#CopyrightDirective definitely confirmed by the Council of EU. #Europe, first continent to protect content: #GAFAM will now have to share their revenues with creators and journalists. #EuropeForCreators."

  Organisations representing rights holders and creators such as the European Magazine Media Association, the European Newspaper Publishers’ Association, the European Publishers Council, News Media Europe, music rights organisation GESAC, independent music labels' group IMPALA, the European Writers’ Council (EWC), the Federation of European Film and TV Directors (FERA), the Federation of Screenwriters in Europe (FSE) and the European Composer and Songwriter Alliance (ECSA), among others, welcomed the final adoption of the Directive.

  After publication in the Official Journal of the EU, all 28 Member States will now have two years to implement the the Directives into their national law. France's Minister of Culture Frank Riester said he expected French Parliament to debate the new legislation during the summer.

 

Leeway for interpretation

  However, if the SatCab Directive is likely to be implemented without major problems, the Copyright Directive may not pass as easily in all Member States. Estonia, which abstained, said the final text “does not strike a sufficient balance between different interests in all aspects.” Some countries like Poland or Italy have already announced that they try to limit the reach of the Copyright Directive, in particular with regards to Article 17 (formerly 13) that requires digital services allowing user-generated content to be uploaded on the platform to make licensing deals with rights holders and filter content on their platforms. The debate on Article 17 centered around free speech and opponents like Poland said it would introduce internet censorship.

  "Member states now have two years to implement the reform into national law," said MEP Julia Reda, who was the key opponent to the Directive. "The wording of the Directive does leave some leeway – for example, in the specific interpretation of what constitutes a 'large amount' of user uploads, and thus how many platforms fall under the scope of Article 17 (formerly 13)."

  In a joint message, EWC, FERA, FSE and ECSA called "on all EU Member States to engage in an ambitious and constructive implementation of the Directive so that it honors its promises to improve the livelihoods of all authors and foster Europe’s creativity."

 

Content crossing borders

  The SatCab Directive will introduce a series of new rules making it easier for European content to cross borders. The key component to the Directive is the adoption of the country of origin principle that will facilitate the licensing of rights and make certain types of programmes on their online services available across borders. The services covered by the legislation include simulcasting, catch-up services and other services that complement the main broadcast, such as previews. In addition, European consumers will have access to a wider choice of radio and TV programmes offered by retransmission services provided through Internet Protocol television (IPTV), satellite, digital terrestrial, mobile networks or over the internet.

  The Directive makes the use of compulsory collective management for rights clearance the preferred mechanism for retransmission services provided through means other than cable, such as internet-distributed services. The Commission explained that such system will make it "easier to obtain authorisations required to re-transmit radio and TV channels from other Member States."

  The SatCab Directive also clarified the legal status of the so-called "direct injection" technique. This happens when a broadcaster transmits its programme-carrying signals to signal distributors in such a way that these signals are not accessible to the public during that transmission. The Directive introduces the notion that when this happens, only a single act of communication to the public is deemed to occur which requires that both the broadcaster and the signal distributor will have to clear the underlying rights.

  "These new rules will provide wider access to online content for the European citizens and will enhance European cultural diversity, as right-holders will be adequately rewarded for their works. This is another great benefit of the EU's Digital Single Market," said Romanian Minister for Culture and National Identity Valer Daniel Breaz.