EU Copyright Directive: the Dutch proposal as a best practice in transposition

It has now been just over one year since the adoption of the EU Copyright Directive. We as the Association of European Innovative Media Publishers (EIMP) deeply regret that the Directive was approved in its current form, without consideration for the input provided by EIMP and other organizations relating to the problems the Directive will pose for many smaller enterprises and private persons across the European Union. At the same time, it is undeniable that the extensive debate which raged throughout the policy-making process showcased all the problems with the Directive. These problems and divergences in opinions have not simply disappeared because the Directive was approved. The sheer amount of noise created around this Directive has in itself been a success for us. From concepts such as the ‘link-tax’, to ‘upload filters’, and the ‘meme-ban’, the degree of interest in an often closed and opaque process such as EU policy-making has in this case reached far beyond the directly involved politicians, organisations, and institutions.

Now, the debate moves to the national level, as EU countries seek to implement the Directive by summer 2021. As countries have different processes and operate at different speeds in terms of implementation, this is a timely opportunity to identify good transposition examples EU countries should follow. One such good example is the Dutch law proposal, which stays close to the Directive in both letter and spirit, and thereby is more EU-law compliant. This makes it less vulnerable to misinterpretation and incorrect implementation, which should ensure less fragmentation across the digital single market.

EIMP has repeatedly stressed the problems with Articles 15 and 17. The European Commission pledged to hold a stakeholder dialogue on Article 17 following the adoption of the directive to draft implementation guidelines for member states, it did so throughout fall 2019 and early 2020, but was delayed in wrapping up the dialogue and publishing the guidelines by the outbreak of the Coronavirus. Now we find ourselves in the inverse situation where EU countries are proposing implementation laws prior to the Commission guidelines being published.

The Dutch proposal puts forward promising transposition methods. On Article 15, for example, the Dutch transposition text is as close to the Directive as possible: hyperlinking is allowed, including headlines accompanied by several words or very short extracts. The transposition also expressly mentions that facts remain free, which is welcome. An addition we would also hope to see is that images and snippets are allowed along with hyperlinks and facts. On Article 17, the proposed text refers definitions such as the ambiguous ‘best efforts’ to the European Court of Justice, thereby not creating additional uncertainty of interpretation between courts from different EU countries. Furthermore, the proposal does not include press publishers and does include the principle of proportionality in the law, which is yet again a welcome sight.

Overall, transposition proposals that stay as close as possible to the word and spirit of the Directive should be encouraged, as they minimise the chances of misinterpretation and incorrect implementation, and discourage fragmentation across the digital single market. We welcome the Dutch effort at transposing the Directive, and call upon all other EU countries that are yet to submit their proposals, or are in the midst of debating them, to use the Dutch template as a guiding light in order to make the best out of this complicated Directive.

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