Kolaja: the French implementation of the Copyright Directive counter the conclusions of the European Commission

Brussels, 9/12/2019 – France started the implementation process of the copyright directive; however, the proposal as it stands currently goes against the original intentions of EU legislators, and would have a negative impact on current popular practices of users, such as sharing memes on-line. In September, Vice-President of the European Parliament Marcel Kolaja, member of the Czech Pirate Party, interpellated the European Commission regarding the rules about the exceptions in the copyright directive. In its reply (see below), the European Commission confirmed his views. 

“France has made a mistake in implementing the problematic copyright directive and will now have to correct its draft of the law. I encourage Member States to be more careful in protecting the rights of users on the Internet and discuss the proposals more thoroughly with the nonprofit organizations concerned, which have been raising similar issues for years,” said Marcel Kolaja.

An implementation error occurred in the section on users’ rights which would regulate users’ ability to benefit from copyright exceptions. Such exceptions are, for example, quotations, criticism, review, caricature, parody, etc. Each Member State’s legal system has exceptions set differently and the Directive explicitly states that a Member State must ensure that users are able to rely on these exceptions. This was the compromise reached during the negotiations that was supposed to ensure that users in the EU are free to upload memes. The French implementation has tested the possibility for providers to mention these exceptions only in the terms and conditions of their services. However, this procedure is insufficient, according to the European Commission.

“The Commission considers that the obligations provided for in paragraphs 7 and 9 cannot be considered fulfilled by Member States by seeking to rely on any general provision informing users about existing exceptions and limitations in the terms of use of the OCSSPs.” said in the report by former Commissioner Mariya Gabriel.

Full text of question and answer:

Question (by Vice-President of the European Parliament Marcel Kolaja):

In the context of the implementation of the Copyright Directive, does the Commission consider that Member States’ obligation to ensure that users can rely on existing copyright exceptions (as provided for by Article 17(7) of Directive (EU) 2019/790) can be fulfilled by a general provision informing users about existing exceptions and limitations in the terms of service of the online content-sharing service provider (OCSSP) whose services are used to host copyrighted content? Or should the implementing legislation require that measures be put in place by OCSSPs to not only ensure that users are informed, but also that they can effectively use these exceptions and limitations without pre-emptive blocking by these OCSSPs?

Answer (by Commissioner Mariya Gabriel):

The directive on copyright in the Digital Single Market is addressed to Member States. The directive, unlike a regulation, is not directly applicable. Under Article 17, Member States are required to comply with a number of obligations with respect to exceptions and limitations to copyright. For example, paragraph 7 provides that the general application of Article 17 shall not affect legitimate uses, such as uses under exceptions or limitations provided for in Union law. These obligations impose don Member States extend to the activity of online content sharing service providers (‘OCSSPs’). This means that any obligation directed at OCSSPs should be properly implemented in national law. Therefore, whilst it is correct that paragraph 9 requires OCSSPs to inform their users in their terms and conditions that they can use works and other subject matter under exceptions or limitations to copyright and related rights provided for in Union law, this obligation must be given effect to by Member States in their implementing legislation. Accordingly, the Commission considers that the obligations provided for in paragraphs 7 and 9 cannot be considered fulfilled by Member States by seeking to rely on any general provision informing users about existing exceptions and limitations in the terms of use of the OCSSPs.