EU Copyright Directive – Comment from Hogan Lovells

London, 26 March 2019 - Today the EU Parliament voted to pass the draft Copyright Directive into EU law.

Alastair Shaw, counsel, and Morten Petersenn, partner at Hogan Lovells, commented: "Today's vote in the European Parliament represents a major milestone in the development of EU copyright law, which has not been subject to major changes like this since the InfoSoc Directive in 2001.  Although it does not introduce changes quite as fundamental as that legislation, it does represent a significant shift for some sectors, notably in relation to the new digital press publishers’ right (in what is now Article 15) and the content sharing service provider liability regime it introduces (now in Article 17), each of which have proved to be highly controversial.

"Focussing on what was Article 13 (now Article 17), the final version of the Directive leaves a lot of question marks. It includes a provision that the Commission must issue guidance on the application of, and specifically the limitation of liability regime. This practice-oriented document will be interesting, as it should contain more precise suggestions of technical solutions to comply with the limitation of liability regime but it will not be binding on the CJEU, leaving uncertainty for both content sharing platforms and rightholders. We expect that national Courts and ultimately the CJEU will have to answer a number of questions, including, in particular, what amounts to “best efforts” in relation to the various obligations on content sharing services and also precisely which services fall within the definition of an online content sharing service.

Commenting on the impact of Brexit, Alastair Shaw added: "It's not yet clear whether the UK will be required to implement the Directive.  If Brexit is delayed longer than currently anticipated, and then there is a further two year transition period under a EU/UK deal, we are quite likely to hit the end of the two year implementation for the Directive.  If that is the case, and assuming terms of the 'deal' in relation to EU law remain broadly as they are now, then this legislation will have to be transposed into UK law.  In a 'no deal' Brexit scenario, there will be no obligation to implement."

For a full overview of the Copyright Directive, please click here.

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