ECTA Members’ Voice: National implementation of the new Directive on copyright: the deadline has passed, but not much is happening. An update.
By Fabio Angelini, ECTA Copyright Committee Vice-Chair, Bugnion S.p.A. (IT)
Despite much fanfare and somewhat wishful thinking headlines by the European Commission (cf. ‘New EU copyright rules that will benefit creators, businesses and consumers start to apply'), 7 June 2021 marked another disappointing step in the so far quite arduous path of the 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’).
Indeed, while according to Art. 29 of the New Copyright Directive Member States were required to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 7 June 2021, at this time, only a handful have done so.
To the best of my knowledge, only Denmark and Germany have actually passed bills to implement the full text of the New Copyright Directive, (cf. here), while the European Commission website reports that only France, Hungary and Czech Republic have notified the Commission of having implemented some part of the New Copyright Directive (cf. here). Surely it did not help Member States that the European Commission waited until 4 June 2021 to publish its ‘Guidance on Article 17 of Directive 2019/790’ (possibly the most contested and controversial article of the New Copyright Directive), which is certainly an interesting document to read, but whose effectiveness at this time, when many Member States have already engaged in lengthy internal discussions and various draft bills are pending, is doubtful.
Another factor in the delay of implementation could also be the challenge by Poland at the Court of Justice (cf. case C-401/19, action brought on 24 May 2019 — Republic of Poland v European Parliament and Council of the European Union) where Poland is seeking the annulment of Article 17(4)(b) and Article 17(4)(c), in fine (i.e. the part containing the following wording: ‘and made best efforts to prevent their future uploads in accordance with point (b)’) or in the alternative, should the Court find that the contested provisions cannot be deleted from Article 17 without substantively changing the rules contained in the remaining provisions of that article, that the Court annul Article 17 in its entirety.
As widely reported, Poland alleged infringement of the right to freedom of expression and information guaranteed by Article 11 of the Charter of Fundamental Rights of the European Union, claiming specifically that the imposition on online content-sharing service providers of the obligation to make best efforts to ensure the unavailability of specific works and other subject-matter for which the right holders have provided the service providers with the relevant and necessary information and the imposition on online content-sharing service providers of the obligation to make best efforts to prevent the future uploads of protected works or other subject-matter for which the rightsholders have lodged a sufficiently substantiated notice, make it necessary for the service providers (in order to avoid liability) to carry out prior automatic verification (filtering) of content uploaded online by users, and therefore make it necessary to introduce preventive control mechanisms. Thus, according to Poland, such mechanisms undermine the essence of the right to freedom of expression and information and do not comply with the requirement that limitations imposed on that right be proportional and necessary.
The Advocate General had said it would render his opinion in April 21, but then the Court of Justice announced that the opinion would be delayed until July 15 (cf. here).
Thus, it is perhaps comprehensible that Member States are not rushing to implement the New Copyright Directive.
The ECTA Copyright Committee is closely following the implementation of the New Copyright Directive and welcomes contributions and comments by all ECTA members.
The views expressed are those of our members and not necessarily of ECTA as an association. The content has not been subjected to a verification process, the accuracy of the information contained in the article is responsibility of the author.
The EUIPO launched a new Out-Of-Commerce Works Portal, a platform where to access information about ongoing and future uses of out-of-commerce works: books, films, or visual works, that are still protected by copyright but are no longer or have never been commercially available.
Cultural heritage institutions contain millions of out-of-commerce works in their collections, which still hold value for research or education purposes or are simply entertaining.
Directive (EU) 2019/790 introduced a legal framework to support the digitisation and cross-border dissemination of out-of-commerce works. Information about these works has to be stored in a public single online portal, the creation and management of which has been entrusted to the EUIPO.
The regime will complement the measures already in place for the use of orphan works at European level such as the Orphan Works Database.
The EUIPO’s Academy offers webinar courses every Tuesday. These sessions are open to all and a live chat with the speakers will be made available. Please note that the recorded webinars are available on the EUIPO learning portal after the broadcast.
The June schedule of the webinars is as follows:
Tuesday 15 June, 10:00-11:30 (CET): IP behind and inside movies – a practical analysis of today's movie industry. Webinar organised in collaboration with the EPO - intermediate
Tuesday 22 June, 10:00-11:00 (CET): Promote creativity, innovation and entrepreneurship with IdeasPowered@school resources! - Basic
Tuesday 29 June, 10:00-11:00 (CET): The new services offered by alternative dispute resolution - Basic
Visit the Academy's Calendar to access the webinars and see the latest updates for the upcoming months.
On the EUIPO Learning Portal you can also find the following eLearning courses:
- Digital infringement study - Intermediate - Link
- Track on Case Law: Judgments of the GC and CJEU- Decisions of the EUIPO Boards of Appeal 2021 - Advanced - Link
- Introduction to the Geneva Act & Lisbon System for the International Registration of Appellations of Origin and Geographical indications - Intermediate - Link
- New Common Practices 2021: new types of trade marks and appeal proceedings - Advanced - Link
For further information please visit the Academy's Learning Portal.
WORLD ANTI-COUNTERFEITING DAY 2021: RISKS AND DAMAGES POSED BY IPR INFRINGEMENT IN EUROPE
Today is the World Anti-Counterfeiting Day and the EUIPO has launched a Pan-European Campaign to raise awareness of the risks and damages posed by IPR infringement in Europe.
According to the EUIPO study European Citizens and Intellectual Property, consumers still find it difficult to distinguish between genuine and fake goods. Nearly one in ten Europeans (9%) claimed that they were misled into buying counterfeits, with significant differences among EU Countries: Member States with a higher proportion of misled consumers are Bulgaria (19%), Romania (16%) and Hungary (15%), while Sweden (2%) and Denmark (3%) have the lowest figures within the EU.
In a context where e-commerce is booming (over 70% of Europeans shopped online in 2020, according to Eurostat) uncertainty regarding counterfeit products remains a concern among EU citizens. According to the study, a third of Europeans (33%) wondered whether a product they had bought was original.
A joint study by the EUIPO and the OECD shows that counterfeits represent 6.8% of EU imports worth EUR 121 billion and they impact every sector: cosmetics, toys, wine and beverages, electronics, clothing and even pesticides. During the COVID-19 pandemic, concern over counterfeit products has risen with a sensitive increase of counterfeit medicines and other medical products (e.g. antibiotics, painkillers, personal protective equipment, face masks, etc.).
In addition to the health and safety risks, counterfeits often lead to security breaches and financial losses. Digital piracy is another lucrative market for infringers, especially in the case of IPTV - televised content acquired through an internet connection. Providers of illegal IPTV gain almost EUR 1 billion euro every year in the EU, harming content creators and legitimate businesses.
Besides, counterfeiting not only affects consumers but also entails significant damage to the EU economy and, in particular, to SMEs. According to the IP SME scoreboard published by the EUIPO, one out of four SMEs in Europe claims to have suffered from IP infringement.
To find out more about risks and damages posed by IPR infringement in Europe, please read here and here.
ECTA is also actively contributing to the fight against counterfeiting by sharing professional experience and best practices at the EU level and beyond, inter alia in its Anti-Counterfeiting Committee.
To learn more about our Anti-Counterfeiting Committee, please click here.
June has just arrived, and we are looking forward to having you on board for our upcoming initiatives and meetings!
We are about to launch the registration for the new online ECTA Debate Club, a series of educational and networking IP sessions open to a maximum of 30 members. Here is what you can expect to debate on:
Tuesday, 15 June (14.00-15.30 CET): Registrability of trade marks against public order or morality
Thursday, 17 June (14.00-15.30 CET): NFTs – A brave new world, or the emperor’s new clothes?
Friday, 25 June (14.00-15.30 CET): Proof of use of a trade mark. A very important factor for all countries?
Tuesday, 29 June (11.00-12.30 CET): Are we in a new era in the fight against trade mark squatting in China?
All sessions are organised with the support of Knowledge Partner of the ECTA Debate Club June 2021 Koushos Korfiotis Papacharalambous LLC.
Save the date and look out for ECTA emails announcing each session separately with the respective registration link or check the ECTA Private Site/News Section. Places will be assigned on a first come-first served basis, so make sure you apply quickly!
Besides, from 21 to 25 June, we will hold online Supervisory Board and Committee Meetings. While the Supervisory Board will discuss ECTA strategic and financial aspects, Committee Meetings will be an invaluable opportunity to network with peers, advance projects and learn about recent case law, legislative and policy developments. All ECTA members are invited to join us at the Annual General Meeting on 25 June.
To consult the schedule of June events, please click here.