Diesen Beitrag in Deutsch lesen
Author: Paul Keller
So far, the focus in the implementation discussion has been on the implementation of Article 17 and to a lesser degree Article 15 of the DSM directive. In this overview we are looking at how Member States are treating other provisions (focussing on the ones that have been covered in last year’s implementation study). This concerns the Articles 3 & 4 (Text and data mining), 5 (online educational uses), 6 (preservation by cultural heritage institutions), 8–11 (Access to out-of-commerce works and 14 (protection of the public domain).
Articles 3 & 4 on Text and Data Mining
While the exceptions allowing text and data mining (Article 3 & 4 of the DSM directive) have been among the more controversial provisions during the legislative discussions, they have garnered relatively little attention during the implementation process in the various Member States. The main reasons for this is that the language of both Article 3 (Text and data mining for the purposes of scientific research) and 4 (Exception or limitation for text and data mining) is highly descriptive, providing a clear implementation template for Member States. Given that the vast majority of Member States do not have existing exceptions relating to text and data mining, most Member States have so far opted to implement these new provisions as new stand-alone exceptions into their copyright acts.
With regard to the areas of concern identified in the implementation study, there is little to report so far: None of the Member States that have adopted or put forward implementation proposals have included provisions dealing with the removal of technical protection measures to enable text and data mining. There have also been no public efforts to standardise the form of the machine readable right reservation introduced in Article 4(1) and there have been no public stakeholder dialogues to define best practices (as suggested in Article 3(4)) yet.
Article 5 on online educational uses
Article 5 makes it mandatory for Member States to introduce or maintain in force an educational exception giving educators and learners at educational institutions the freedom to use copyrighted materials in digital and cross-border teaching and learning activities. This provision offers a minimum standard of harmonization in the context of formal educational activities, where only certain members of the educational community, under certain conditions, can benefit from the right to use protected materials in their activities. Member States can, however, move beyond this minimum set of rules. Under Article 25 they are allowed to fully enjoy the flexibility contained in other EU provisions, namely the education exception contained in article 5(3)(a) of the InfoSoc Directive, which covers all categories of users in all types of formal and informal education settings, and has far less restrictions than the DSM Directive. Despite this, we have seen a few Member States, which already have education exceptions that are broader in scope than Article 5 of the DSM Directive, proposing to maintain the existing exceptions and, at same time, to implement a new exception based on the new provision. That overlap is problematic, since it will likely narrow down the current legal framework for education in those countries.
In the context of the current pandemic, where most Member States were forced to move education online, it would be expected that those that do not yet have in place copyright exceptions covering online education activities would speed up their implementation process of this new provision. However, only Hungary decided to go through the path of an emergency implementation of Article 5 to make a quick fix of their copyright framework for remote teaching activities.
In other Member States, the implementation of Article 5 is following the normal legislative procedure and it is being paid less attention by lawmakers than Article 17. Besides Hungary, only the Netherlands has approved the implementation of this provision, and only three other countries (Germany, Croatia and Czech Republic) have published proposals covering the transposition of this new exception.
It should be highlighted that only Germany has resorted to make use of the option contained in Article 5(2), giving preference to licenses over the exception with regards to certain uses of certain materials that were previously not covered by the national education exception. It is also worth noting that Member States have so far kept their traditions with regards to compensation: those that previously had education exceptions that were completely or largely unremunerated, opted to allow these new uses for free, and those that traditionally offered compensation for educational uses of protected materials, extended compensation to the new uses.
Article 6 on preservation of cultural heritage
The new mandatory exception introduced by Article 6 (Preservation of cultural heritage) is the exception that most closely overlaps with an existing exception: The exception allowing “specific acts of reproduction made by publicly accessible libraries, educational establishments or museums, or by archives” foreseen in Article 5(2)(b) of the InfoSoc Directive. While the new exception is specifically targeted at reproductions for the purpose of preservation, most Member States that have implemented the existing exception have already tied the purpose of the uses allowed to preservation for some form. This leaves Member States with broadly two implementation strategies: They can either introduce a new stand-alone exception modelled on Article 6 of the DSM directive or they can modify existing implementations of InfoSoc 5(2)(c) to mirror the language used in Article 6 DSM.
The Netherlands provides a good comparison of both approaches here. The original consultation version of the implementation law that was published in June 2019 proposed the introduction of a new standard alone exception (Article 16na of the copyright act) alongside the existing one (Article 16n).
The version of the implementation law introduced into parliament in May 2020 reversed course and instead modified the language of the existing Article 16n in line with the requirements of Article 6 DSM. As a result of this new approach the implementation of the DSM directive results in a reduction of the organisations that can benefit from Article 16n: Where the old version had applied to publicly accessible cultural heritage and educational institutions, the new version only applied to cultural heritage institutions, effectively reducing the scope of the existing exception.
While this approach may make sense in the context of attempting to keep national copyright legislation streamlined it also illustrates that the approach of the InfoSoc directive with its generic description of optional exception did allow Member States more room for maneuver than the much more prescriptive exceptions introduced in the DSM directive.
Articles 8-11 – Out-of-commerce works and other subject matter
The provisions enabling cultural heritage institutions to make available out-of-commerce works contained in their collections are among the most complicated provisions in the DSM directive. Article 8 of the DSM directive (Use of out-of-commerce works and other subject matter by cultural heritage institutions) contains two different legal mechanisms intended to enable this objective: The mechanism based on extended collective licensing in Article 8(1) and the “fallback” exception contained in Article 8(2).
This structure does not lend itself to a simple transposition into national laws that are generally structured to deal with exceptions and with licensing related questions in different sections or even different legal acts. So far Member States that have adopted or put forward implementation proposals have chosen to implement the exception foreseen in Article 8(2) as a new stand-alone exception (that is made conditional on the non-existence of a representative collective management organisation) while the other provisions introduced in the remainder of Articles 8 – 11 are implemented elsewhere (in NL in other sections of the copyright act, in the DE proposal these provisions are introduced in the separate collective management act (“Verwertungsgesellschaftengesetz”). Generally this variation of approaches was to be expected as it makes sense from a legal drafting perspective.
With regard to the areas of concern identified in the implementation study, there is little to report so far: There is a lack of clear definitions of what constitutes representative collective management organisations (this will likely only become clear during the sectoral stakeholder dialogues that have yet to commence in any of the Member States). And while some Member States (most notably Germany, which has to to reconcile the new measures for out-of-commerce works with its existing legislation on “Vergriffene Werke”) are proposing specific cut-off dates in their primary implementation legislation, other Member States have relegated this discussion to the upcoming stakeholder dialogues and subsequent secondary legislation.
The crucial work of the EUIPO to create a public single online portal where information about out-of-commerce works used in accordance with Article 8 can be published is underway. After a series of consultations with cultural heritage institutions, Member States and rightholders in late 2019 and early 2020, in April 2020, the EUIPO has published a high level specification of the service it intends to develop. Development of the single online portal is currently ongoing (behind closed doors) and the EUIPO has indicated that it expects to reveal the functionality of the portal (which is expected to be based on the functionality of the existing portal for Orphan Works) in Q2 of 2021, leaving cultural heritage institutions with relatively little time to familiarise themselves with the operation of the portal or to provide feedback on its functionality.
While most Member States have chosen to implement the out-of-commerce provisions by staying as close as possible to the text of the directive, Germany has shown some willingness to go beyond the text of the directive. In addition to the above mentioned inclusion of cut-off dates in the primary legislations, the German implementation proposals contained two notable deviations from the text of the directive:
- In the original German implementation proposal (“Diksussionsentwurf”) published in May 2020 uses of out-of-commerce work under the fallback exception would have been subject to remuneration. This addition (while not necessarily contradicting the text of the directive which is silent on the question of remuneration) was received withs strong opposition from cultural heritage institutions and other public interest stakeholders, who disputed the need for such a requirement and pointed out that it would be logically flawed: Given that the application of the exception is conditional on the absence of a representative collective management organisation there would be no way to distribute the remuneration collected any distribution mechanism would rely on the existence of a (representative) collective management organisation. As a response to the criticism from the cultural heritage sector the remuneration requirement has been removed in later drafts and is not present anymore in the implementation proposal adopted by the government in February 2021 (“Regierungsentwurf”).
- Another deviation from the text of the directive that was included in the initial discussion draft is still included in the Regierungsentwurf: This concerns an additional exception (§61f UhrG-E) that allows cultural heritage institutions, the EUIPO and collective management organisations to make available works in the EUIPO portal in order to provide information about their uses under the out-of-commerce works provisions. This additional exception, which has no direct basis in the DSM directive, would provide a practical solution for an issue that the DSM directive failed to resolve: The OOCW provisions require cultural heritage institutions and collective management organisations to make available identifying information about out-of-commerce works that they intend to use in the EUIPO portal for 6 month before the use takes place. When it comes to visual and audio-visual work purely descriptive information is not sufficient to identify specific works. The additional German exception would allow the use of visual representations that will be much better suited to identify works in the EUIPO database. This deviation from the text of the directive has the potential to significantly improve the functioning of the mechanisms introduced in Article 8-11. So far, Germany seems to be the only Member State interested in addressing this problem.
Article 14 Works of visual art in the public domain
Article 14 that is intended to ensure that reproductions of Public Domain Artworks cannot be protected by neighbouring rights only needs to be implemented by those Member States where this possibility exists in their national copyright frameworks. While other Member States can in theory also transpose this provision into their national laws, it seems unlikely that they will do so. For example the Dutch implementation law does not contain an implementation of Article 14 and the explanatory memorandum notes that “Article 14 is fully in line with current law and therefore does not require transposition.”
Among the Member States that will need to implement Article 14 we currently find two different approaches of implementing the provision.
- In the German Regierungsentwurf Article 14 is transposed as a stand alone provision (§ 68 UrhG-E) that contains language that is very similar to the language in Article 14 itself.
- The Czech implementation proposal takes another route to achieve the effet utile of Article 14. It adds reproductions of “work[s] of fine art for which the period of protection has expired” to the list of excluded subject matter in the definition of work that is contained in Article 2 of the Czech copyright act.
Both approaches seem queally suited to achieve the objective of the public domain clause. So far no Member state has proposed legislation that expands the provision to cover reproductions of works other than visual artworks.
While the implementation deadline is approaching fast with just 4 months left for Member States to implement the provisions of the CDSM directive, most Member States have still to publish their implementation proposals. Over the next few months we can expect a flurry of implementation proposals that may introduce additional approaches (see here for a regularly updated implementation tracker). If the implementation proposals we have seen so far are indicative of those that are yet to come then it seems unlikely that we will see any major derivations from the text of the directive. It seems clear that Member States (other than Germany) by and large are very reluctant to explore any flexibilities that they have in implementing the directive.