Directive (EU) 2019/790 on copyright in the Digital Single Market

Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market adapts EU copyright law to digital uses. It creates new mandatory exceptions, establishes a related right for press publishers, subjects content-sharing platforms to a liability regime of their own and strengthens the contractual position of authors and performers. Its transposition deadline expired on 7 June 2021.

Exceptions and access to works

The Directive imposes three new exceptions: text and data mining, for scientific research purposes on the one hand and for any purpose on the other, subject to the rightholder’s opt-out, the digital use of works for the purpose of illustration for teaching, and reproduction by cultural heritage institutions for preservation purposes. It facilitates the exploitation of out-of-commerce works through extended collective licences. It finally provides that reproductions of works of visual art that have fallen into the public domain cannot be protected, save for originality of their own, so as to guarantee the free circulation of those images.

New rights and platform liability

Article 15 grants publishers of press publications a two-year related right over the online use of their publications by information society service providers. Article 17 provides that online content-sharing service providers perform an act of communication to the public when they give access to works uploaded by their users, and that they must obtain an authorisation or, failing that, demonstrate that they have made best efforts to obtain one and to make notified content unavailable, without any general monitoring obligation and with due regard for the exceptions.

Authors’ remuneration and French transposition

Articles 18 to 23 enshrine the principle of appropriate and proportionate remuneration, an annual transparency obligation on exploiting parties, a contract adjustment mechanism where the remuneration proves disproportionately low and a right of revocation in the event of non-exploitation. France transposed the Directive in several stages: the Act of 24 July 2019 for the related right of press publishers, an ordinance of May 2021 for Article 17 and the contractual provisions, and an ordinance of November 2021 for the exceptions and out-of-commerce works. These provisions now appear in particular in Articles L. 122-5-3, L. 137-1 et seq. and L. 218-1 et seq. of the French Intellectual Property Code.

Key points

Directive 2019/790 modernises EU copyright law through new exceptions, a related right for the press, a liability regime specific to sharing platforms and contractual safeguards for authors. It has been fully transposed in France. For any digital exploitation or any author’s contract concluded since 2021, check the application of the transparency and adjustment obligations, and whether an opt-out from data mining exists.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats is a patent litigation firm. Matters outside that field, such as trade marks, designs, copyright and IT contracts, are handled by practitioners the firm works with regularly, and by the firm itself when they arise in a patent dispute.

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