Copyright in the Digital Single Market Directive (2019/790)

The Directive on Copyright in the Digital Single Market (Directive (EU) 2019/790) represents the most comprehensive reform of EU copyright law since the InfoSoc Directive (2001/29/EC). Adopted on 17 April 2019 after years of intense political debate and unprecedented public mobilisation, the Directive aimed to modernise copyright for the digital age, balancing the interests of rightholders, digital platforms, users, and researchers. Transposition was required by 7 June 2021.

Structure and Objectives

The Directive is structured around three objectives: (1) adapting exceptions and limitations to digital and cross-border environments; (2) improving licensing practices and ensuring broader access to content; and (3) achieving a well-functioning marketplace for copyright. These objectives correspond to Titles II, III, and IV of the Directive.

Text and Data Mining Exceptions

Articles 3 and 4 introduce mandatory exceptions for text and data mining (TDM). Article 3 creates an exception for TDM carried out by research organisations and cultural heritage institutions for scientific research purposes. The exception is mandatory and cannot be overridden by contract. Rightholders may not restrict access to works for the purpose of TDM.

Article 4 establishes a broader exception for TDM for any purpose, subject to an opt-out mechanism: rightholders may reserve their rights by appropriate means, including machine-readable metadata. This has significant implications for the development of artificial intelligence and machine learning in the EU, as it allows data mining of publicly accessible works unless rightholders have expressly reserved their rights. The exception applies only where the works are lawfully accessible.

Press Publisher Right (Article 15)

Article 15 introduces a neighbouring right for press publishers in the digital use of their press publications. The right grants publishers the exclusive right to authorise or prohibit the reproduction and making available to the public of press publications by information society service providers. The right covers digital uses only and lasts for two years from publication (reduced from the original 20-year proposal).

The press publisher right was one of the most controversial provisions in the Directive. Opponents argued it would constrain the freedom to link and share news, while proponents contended it would rebalance the relationship between publishers and platforms such as Google and Meta. Implementation has varied: Germany and France transposed the right with detailed provisions, while other Member States adopted minimal transposition. The Court of Justice has not yet ruled on the validity of Article 15, but national courts in Spain and Germany have referred preliminary questions on its scope.

Article 17 — Upload Filters and Platform Liability

Article 17 (formerly Article 13 of the Commission proposal) addresses the liability of online content-sharing service providers (OCSSPs) for copyright-infringing content uploaded by users. The provision overturned the limitation established by UPC Telekabel (Case C-314/12) and diverges from the general liability framework of the e-Commerce Directive (2000/31/EC).

Article 17(1) provides that OCSSPs perform an act of communication to the public when they give the public access to copyright-protected works uploaded by their users. This means OCSSPs are directly liable for infringing content, not merely subject to a notice-and-takedown regime.

Article 17(4) establishes a specific liability exemption: OCSSPs are not liable if they demonstrate that they made best efforts to obtain an authorisation (licensing); made best efforts, in accordance with high industry standards of professional diligence, to ensure the unavailability of specific works identified by rightholders; and acted expeditiously to remove notified content and made best efforts to prevent its future upload.

The practical effect of Article 17 has been the widespread deployment of automated content recognition (upload filter) technologies. Recital 66 and Article 17(7) include safeguards: automated blocking must not affect permitted uses (quotation, criticism, review, parody), and Member States must ensure that users can effectively challenge blocks through complaint and redress mechanisms.

Out-of-Commerce Works

Articles 8 through 11 address the mass digitisation of out-of-commerce works — books, films, and other cultural materials no longer commercially available. Article 8 introduces transparency obligations and a legal mechanism enabling collective management organisations to license out-of-commerce works on behalf of all rightholders through extended collective licensing.

Article 10 provides that a work is presumed to be out-of-commerce if it is not available through customary channels of commerce and cannot be reasonably expected to become so. Member States must ensure that rightholders can opt out of the licensing scheme at any time.

Other Key Provisions

Article 14 provides that when the term of copyright protection of a visual work of art expires, no further copyright or related right may be claimed in material resulting from an act of reproduction of that work. This prevents the assertion of new copyright in reproductions of public domain works, which had been used to assert control over museum collections.

Articles 18 through 23 address the position of authors and performers. Article 18 establishes a principle of proportionate remuneration for licences and transfers of rights. Article 19 imposes transparency obligations on licensees to provide authors and performers with up-to-date information on the exploitation of their works. Article 20 introduces a contract adjustment mechanism for disproportionately low remuneration. Article 22 provides for alternative dispute resolution.

Impact and Implementation

The Directive has been transposed by all Member States, though the European Commission has launched infringement proceedings against several states for incomplete or incorrect transposition. The impact of Article 17 on the digital ecosystem continues to be debated, with ongoing discussions about the proportionality of automated content filtering and its compatibility with the EU Charter of Fundamental Rights.