An authoritative guide to the DSM Directive

Abstract

As Eleonora Rosati points out in the Preface to her new book, 2021 is a momentous year for European Union copyright law for three reasons. Firstly, it is the 30th anniversary of the first harmonizing Directive in the field of copyright and related rights, the Computer Programs Directive.1 Secondly, it is the 20th anniversary of the most significant of the 19 Directives and Regulations (if you include the E-Commerce Directive2 and the IP Enforcement Directive3) passed so far, the Information Society Directive,4 the interpretation of which continues to keep the Court of Justice of the European Union busy.5 Thirdly, it is the year in which implementation was due of the most ambitious and complex Directive since the Information Society Directive, namely, the Digital Single Market Directive.6 It is the Digital Single Market Directive that forms the subject of this book. For those who are not yet familiar with it, the Directive is divided into five Titles, supplemented by no less than 86 recitals. Title I, ‘General Provisions’, consists of Articles 1 and 2, which set out the subject-matter and scope of the Directive and various definitions. Title II, ‘Measures to Adapt Exceptions and Limitations to the Digital and Cross-Border Environment’, consists of Articles 5–7, which introduce new mandatory exceptions for text and data mining (Articles 3 and 4), digital and cross-border teaching (Article 5) and preservation of cultural heritage (Article 6). Title III, ‘Measures to Improve Licensing Practices and Ensure Wider Access to Content’, is divided into four chapters. Chapter 1 (Articles 8–11) consists of provisions concerned with the use of out-of-commerce works by cultural heritage organizations, in particular through licencing by collective management organizations. Chapter 2 (Article 12) is intended to facilitate extended collective licencing. Chapter 3 (Article 13) is intended to facilitate access to audiovisual works on video-on-demand platforms and Chapter 4 (Article 14) prevents Member States from conferring related rights (as opposed to copyright where the originality criterion of author’s own intellectual creation is satisfied) upon photographs of works of visual art that are in the public domain. Title IV, ‘Measures to Achieve a Well-Functioning Marketplace for Copyright’, is divided into three chapters. Chapter 1 provides a new related right for press publishers (conceptually similar to, but differing in many details from, the UK typographical arrangement right) (Article 15) and for publishers to be able to receive a share of royalties received by authors (Article 16). Chapter 2 (Article 17) contains a complex set of provisions regulating the use of protected content by ‘online content-sharing service providers’. Chapter 3 contains a series of provisions intended to ensure that authors and performers receive fair remuneration from contracts for the exploitation of their works and performances: a requirement that authors and performers receive appropriate and proportionate remuneration (Article 18); an obligation for licencees and transferees to provide authors and performers with information concerning the exploitation of their works and performances (Article 19); a requirement that authors and performers be able to claim additional remuneration where the remuneration originally agreed turns out to be too low (Article 20); a requirement for ADR to be made available (Article 21): and a requirement that authors and performers be able to revoke licences and transfers where there is a lack of exploitation (Article 22). Title V, ‘Final Provisions’, amends some of the earlier Directives and contains some technical provisions dealing with things like application in time and transposition (Articles 24–32).