After extensive debate, the Council of the European Union recently approved Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market and Directive (EU) 2019/789 laying down rules on the exercise of copyright and related rights applicable to online transmissions of broadcasting organisations and retransmissions of television and radio programmes.
These directives include amendments to the existing legislation, adapting the rules on copyright to today’s world, taking into account technological advances. The main objective of these reforms is to adapt the necessary legislation to guarantee fair remuneration for rightholders.
The new directives address present-day means of accessing works, such as real-time music broadcasting services, video-on-demand platforms, news aggregators and user-uploaded content platforms.
Technological advances have led to the creation of new forms of dissemination of works. Broadcasting organisations and operators of retransmission services offer multiple programmes and platforms comprising a large number of works and other protected subject matter.
This directive has sought to preserve the interests of rightholders and providers of online or broadcasting services, with a view to facilitating the clearance of rights for national and cross-border provision of ancillary online services.
Moreover, it specifies the application of the country of origin principle and the requirements that must be met by operators of retransmission services to provide certainty to rightholders and provide them with a fair remuneration.
Thus, when those organisations set the amount of the payment to be made, they must inform the interested parties (through management organisations) of all aspects of the ancillary online service, that is, the features of the online service, the availability of the programmes provided, the audience, and the language versions available.
Where more than one collective management organisation manages the rights affected in the Member State in question, determining which management organisation has the right to grant or refuse authorisation will be up to the Member State. Said collective management organisations must maintain proper records of membership, licences and the use of works, in order to comply with the transparency obligations established in the Directive.
Directive (EU) 2019/790 is intended to further harmonise the laws of the Member States on copyright and related rights in an effort to ensure that competition in the digital single market is not distorted. It also aims to establish general principles for future-proof legislation, providing the system with legal certainty but without restricting technological development.
In relation to areas such as research, innovation, education and conservation of cultural heritage, the Directive is innovative in its application of exceptions and limitations with the aim of achieving a fair balance between the rights and interests of authors and rightholders, on the one hand, and of users on the other. The exceptions and limitations, as restrictive criteria with respect to copyright, can be applied only in certain special cases, precluding application by analogy.
In keeping with previous Community legislation, the Directive addresses the need for Member States to have a rigorous and well-functioning collective management system, with regard to good governance, transparency and reporting, to ensure the regular and diligent distribution and payment of amounts due to individual rightholders. Management organisations must likewise be governed by the principle of equal treatment and facilitate the exclusion of works for rightholders.
In this case, the Directive includes measures to facilitate the collective licensing of rights. Consequently, the Member States must provide for licensing mechanisms of this kind which permit collective management organisations to conclude licences, on a voluntary basis. Such mechanisms could include extended collective licensing, legal mandates and presumptions of representation.
In conclusion, both directives have included mechanisms for legislation to gradually adapt to advances in technology, which has seen a drastic transformation in recent years.
We will closely follow the transposition of these directives into Spanish legislation, which, according to Community regulations, must be carried out by 7 June 2021.Authors: Harumi Wakida y Mabel Klimt