On the 12^th September 2018, the European Parliament adopted its revised negotiating position on the Digital Single Market Directive, including the controversial internet ‘link tax’ and ‘upload filter’, whilst adding some safeguards to protect small businesses and freedom of expression.

Significantly, there are parts of this proposal that can have an impact on the museum world in Europe. As provided, ‘cultural heritage institutions’ (including museums, libraries and archives) would be able to offer out-of-commerce works from their collections to the public via extended licences from collective management organisations (such as DACS or CLA in the UK). ‘Out-of-commerce works’ are defined as works that are still protected by copyright but are no longer commercially available, and located in a permanent collection. Article 7 provides that when a collective management organisation concludes a non-exclusive licence with a cultural heritage institution to make out-of-commerce works available to the public, such a licence may be extended to comparable rightholders despite not being represented by the collective management organisation. The use by the institution would have to be non-commercial.

Another aspect of interest to museums is the proposed preservation exception under Article 5. Under this, cultural heritage institutions are permitted to make copies of any works permanently in their collections, in any format or medium, for the purposes of preservation to the extent necessary for such preservation.  An analogous, but narrower, exception already exists in the UK under section 42 of the Copyright, Designs and Patents Act 1988, under which a library, archive or museum may make replacement copies of works as long as the institution is not-for-profit, the material is not generally on public display and it is not reasonably practicable to purchase a copy of the work in question.

In its revised form, the EU Parliament broadened the Article 5 preservation exception further, and added a provision requiring Member States to ensure that any material resulting from an act of faithful reproduction of works in the public domain shall remain free from copyright, provided that such reproduction is for the purposes of preservation (and any contractual provision contrary to this exception shall be unenforceable). This brings to mind the Bridgeman dispute, litigated in the USA, in which it was held that exact reproductions of public domain images could not be protected under copyright because such copies lacked the necessary ‘originality’ for copyright to subsist.

As a whole, the Digital Single Market Directive is an integral part of the EU’s Digital Single Market development initiative, and is also meant to protect copyright holders’ rights in the face of large tech companies’ use of online content in aggregations and links.  The copyright reform focused on three main objectives: to increase cross-border access to copyright content online; to facilitate the use of copyrighted material for education, research and cultural heritage purposes; and to clarify the rules for a copyright marketplace, whilst stimulating the creation of original content.

However, since the DSM Directive was tabled in September 2016, it has been subject to widespread criticism and intense lobbying from a range of sectors, including the tech and the creative industries.  Two of the most controversial provisions were contained in Articles 11 and 13, which required online platforms, such as Facebook and Google, to pay news organisations a license fee before linking to their content and to ensure that unlicensed copyrighted material is not shared by users on such platforms.

Important tweaks were made to the Committee proposal mooted in June 2018, which was originally rejected by MEPs in July.  Approved amendments to Article 13 restrict the scope of its impact to online platforms that hold “significant” levels of content and “promote” them, thereby offering an exception for small businesses.  Article 11 was also amended to permit links that contain individual words from the content of the works therein, but not full phrases or headlines.

The text also includes provisions to ensure that copyright law is observed online without unfairly hampering the freedom of expression that has come to define the internet and that uploading content to online, non-commercial encyclopaedias, such as Wikipedia, or open source software platforms, such as GitHub, will automatically be excluded from the requirement to comply with copyright rules.

The updated position of the Parliament was approved in a plenary vote, with 438 in favour and 226 against.  The language of the Directive is now being finalised behind closed doors in trilogue negotiations between the European Commission, the Council of the European Union and the European Parliament.  Agreement is expected in early 2019, after which the Directive will go back to Parliament for a final vote before being implemented by individual member states to be passed into domestic law.

The Parliament’s adopted text can be read in full here.

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For those interested in copyright and its impact on museums and the arts, Molly Torsen Stech’s book Artists Rights: A Guide to Copyright, Moral Rights and Other Legal Issues in the Visual Arts Sphere (IAL, 2015) highlights all the major issues involved. For coverage of the EU’s last major directive in this area, the Orphan Works Directive of 2012, see Daniela Simone’s article on the topic in our journal Art Antiquity and Law.