AUTHORS’ RIGHTS. Through perseverance, and in the face of an unprecedented lobbying campaign, the creative world has obtained the European Union's recognition of its rights regarding creative content used by Internet sharing platforms. These developments will have very real consequences for all creators, especially as music is the most downloaded online content. Next step: the transposition of the directive into French law.
It's done! After many reversals, the Copyright Directive has been adopted and is now engraved in the Official Journal of the European Union as Directive No. 2019/790. "This directive was the only opportunity for creators in Europe, and the press sector, to negotiate remuneration or the removal of their protected online content. They now have a legal instrument to defend their rights throughout Europe", says Jean-Marie Cavada, who defended the legislation tooth and nail in the European Parliament.
It is important to state that Article 17 (formally Article 13) of the new directive clears up an issue which had become paramount with the development of video sharing platforms such as YouTube or Dailymotion: are content sharing platforms legally and financially responsible as regards rights holders? European law on this point had been unclear with some European, and even French, judges considering that the e-commerce directive of 2000 allowed platforms containing content downloaded by third parties to avoid any liability as regards the works' creators. The new directive has swept aside these doubts and confirmed that, "active platforms which share commercially protected content" are liable and, as such, have the duty to negotiate licences with the representatives of the works' creators. The legislation treats platforms fairly: for example, smaller and newer ones are subject to less demanding obligations. In addition, the directive states that the creative artists' representatives must cooperate with the platforms in good faith.
© Geneviève Engel - European UNion 2019 / EP
GAFAM LOBBYING
Any discussion of the copyright directive must include the lobbying campaign which was directed against it: the new obligations, balanced though they are, were not accepted by the platforms without a fight. Everyone remembers, for example, videos of YouTubers railing against the "dangers" and even "censorship" which, in their opinion, would result from the directive. Sylvie Guillaume, MEP and Vice-President of the European Parliament at the time of its adoption, was taken aback: "This legislation has been the subject of unprecedented lobbying, with resources deployed at a level I have rarely experienced". She adds that "far from setting up a 'blanket surveillance system', or resulting in censorship, or even risking the destruction of the web itself as its critics liked to say, this legislation aims, above all, to redress the balance of power between artists and the big tech companies by ensuring that the value captured by GAFAM using this content is fairly redistributed amongst all those who contribute to the value chain". Jean-Marie Cavada agrees wholeheartedly, insisting that the arguments put forward by creative artists and web giants were not of the same nature: "The arguments put forward by those against Article 13 (now Article 17) have absolutely nothing to do with those we were defending, for the sole reason that they were completely wrong. Google, YouTube and all the other Internet giants have exploited Internet users, especially young people".
CONSEQUENCES
Specifically, the Copyright Directive aims to ensure that platforms which derive commercial benefit from the fact that users upload copyrighted material onto them, pay rights holders accordingly, and that they also have an obligation of transparency towards them. Once the Copyright Directive has been transposed into French law, the platforms will be obliged to negotiate licences which will define rates of remuneration and set out their obligation to provide information on the quantity and identity of the works distributed and how they have been monetised. Admittedly, several platforms have already signed such agreements. Sacem has contracts with Google, Facebook, and SoundCloud and is in talks with Dailymotion. Previously, the platforms had no legal obligation to negotiate. With the Copyright Directive in place, creators' representatives will negotiate with the platforms on an equal footing.
This change of paradigm is not just theoretical: creators' representatives, Sacem first and foremost, intend to use the directive to negotiate better contractual terms for creators. The issue is particularly important for music: it has been known for several years that musical works are the primary content consumed on sharing platforms. The Centre national du cinéma et de l’image animée (CNC) [French National Centre for Cinema and the Moving Image] has just confirmed in its 2018 Annual Report, published in May: " Music videos are the most watched type of content on sharing sites: 44.4% of users of these sites have admitted to watching this type of content. "
THE SPECIAL CASE OF YOUTUBE
Amongst the content-sharing platforms, YouTube holds the top place: the platform boasts 1.9 billion monthly users with no less than five billion videos being watched every single day, including a very high proportion of music videos or videos with musical content. However, without the Copyright Directive, it was difficult to negotiate with YouTube: "If it had been possible to negotiate with YouTube in a balanced way, we would not have needed Article 13!", said David El Sayegh, Secretary General of Sacem in 2018. Armed with the new Article 17 (formerly Article 13) transposed into French law, Sacem will be able to negotiate a licence which will insist that YouTube provides accurate and detailed data on the musical content used on its platform. This should improve the basis for calculating the royalties due from online video sites and generate growth in the financial inputs of Sacem which will benefit all its artists.
TRANSPOSITION
The transposition of Article 17 of the Copyright Directive into French law should take place at the same time as the reform of the audiovisual sector, the investigation of which will start at the beginning of 2020. In any case, the legislation must be transposed into French law by 7 June 2021. We will have to be vigilant, stresses Jean-Marie Cavada: "The essential thing is to stay close to the meaning of the directive, to avoid any ambiguity in its structuring with the transpositions being made in other countries. We must be aware that any dispute which is decided by the European Court of Justice could lead to contradictory case law which would complicate the application of the directive".
THE CABLE AND SATELLITE DIRECTIVE
Alongside the Copyright Directive on the European platform of culture, the Cable and Satellite Directive makes the networks and distributors jointly responsible as regards rights holders in the broadcasting of programmes using direct injection. This highly technical legislation, which has not been discussed as extensively, was nonetheless a considerable advance for the rights of creators as regards television channels and distributors. Prior to the Cable and Satellite Directive, broadcasters and channels passed the buck on the subject of their liability as regards rights holders in cases where the TV channels transmitted their programme-carrying signals exclusively to the distributors by direct injection, which the latter then transmitted to their subscribers. In fact, due to the misguided ruling of the CJEU, dating from 2015, the principle of the joint responsibility of channels and distributors for content covered by authors’ rights was not recognised in European law for the direct injection method even though, as explained by Véronique Desbrosses of GESAC,"70% of the programmes broadcast by cable and satellite in Europe are sent using the direct injection method and nearly 80% of this injection is cross-border, so this is a pan-European problem".
The Cable and Satellite Directive puts an end to this ruling: as soon as it is transposed into French law, the channels and distributors will be jointly liable as regards rights holders. Here again, there are very tangible consequences: the CJEU ruling called into question the licences signed between Sacem and other collective management organisations on one hand and the channels and distributors on the other hand, even though, as Véronique Desbrosses points out, "a third of the revenue of European creative artists comes from the distribution and retransmission of their works in radio and television programmes". Sacem is currently making every effort to ensure that the legislation is transposed as soon as possible into French law: the hope is that it will be completed under ordinance as early as autumn 2019.
Isabelle Szepanski
Published September 26 2019