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Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (DSM Directive), symbolising the “copyright revolution” at the European Union level, was adopted by the European Parliament and the Council of the EU on 17 April 2019. It shall be transposed by the Member States before 7 June 2021. From the EU perspective the new rules on copyright might as well mark a turning point in the negotiations with third countries whenever aspects concerning intellectual property—especially intellectual property rights—have to be dealt with; that applies not only to agreements specifically concluded to regulate intellectual property, but also to more comprehensive instruments, such as  free trade agreements.

Directive (EU) 2019/790[1] constitutes a step forward the harmonization in the realm of copyright under EU law. Harmonization mainly concerns the rights of the authors (with primary reference to certain categories) and exceptions to those rights. In a nutshell, the DSM Directive was envisaged to apply rights and obligations connected to copyright also online. Its mission is made explicit since the very beginning, as recitals 1 and 2 specify that more common rules on copyright in the European sphere are functional to the existence of a system ensuring that competition in the internal market is not distorted and are expected to stimulate “innovation, creativity, investment and production of new content, also in the digital environment, in order to avoid the fragmentation of the internal market”. For brevity, with the DSM Directive it is proposed to secure the proliferation and remuneration of “small players” in the face of Google, Facebook, Youtube and the like. For those reasons, the it paves the way for licencing schemes. After the launch of the “Europe 2020 strategy, containing the flagship initiative “A Digital Agenda for Europe”,[2] the idea was to develop and bring about a Digital Single Market (DSM). According to the European Commission, the transition to a DSM would entail enormous advantages for the European Union as a global competitor and for the Member States when cooperating in the EU framework. The DSM  “is one in which the free movement of goods, persons, services and capital is ensured and where individuals and businesses can seamlessly access and exercise online activities under conditions of fair competition, and a high level of consumer and personal data protection, irrespective of their nationality or place of residence. Right after the “Europe 2020” strategy was published the Commission seized the opportunity to underscore that simplifying copyright clearance, management and cross-border licensing was a key action to lower the barriers that were separating all various and diverging “online markets” within the EU, thereby inhibiting the potential of the internet. More precisely, the absence of a EU-driven framework for the efficient management of copyright across the EU was “significantly complicating the process of making knowledge and cultural goods available online”. The Commission opined that in order to achieve a digital market it was necessary, among the other things, to unleash the potential of online distribution by combining the need to enhance the availability of creative content with the right holders’ interest to obtain adequate remuneration and protection for their works.

However, since the very beginning of the procedure leading to the final version of Directive (EU) 2019/790 it appeared indisputable that the new set of rules on copyright would have failed to achieve a fair balance between competing interests and would have been driven mostly by the activity of influential lobbies rather than sectoral experts. The DSM Directive will probably end up restricting the category of “actual beneficiaries” of EU copyright law. The narrow scope of the exceptions, the role played by technical protection measures and the existence of technical difficulties emerging from the obligations established in Arts. 15 and 17 cannot but hamper the interests of many users and a lot of small/medium service providers. The former could face plenty of obstacles in terms of their access to and use of works or other subject matter; the latter—especially small and medium providers—will find it hard (or at times impossible) to bear the weight of the burdens incumbent upon them by virtue of the “link tax” and the “upload filter”. Due to such lack of simplification, the position of tech giants will emerge even strengthened.

National regulations brought into being to give effect to the Directive will vary from one Member State to another. So, it is possible that one of the main purposes of the DSM Directive—namely tearing down domestic barriers hindering transnational digital activities by harmonizing certain aspects of EU copyright law—will remain a dead letter and it looks like the legal certainty desired by the EU will keep being a pipe dream. It is believed, if anything, that the ECJ will be filedwith a number of preliminary rulings for interpretation and that it will continue to exercise a “quasi-legislative” function.

So, copyright holders will be more protected, with more possibilities of remuneration and online providers will bear heavier burden on tracking and reacting to illeal content. We will see how that will go.


[1] 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 and amending Directives 96/9/EC and 2001/29/EC,

OJEU L 130/92.

[2] 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 and amending Directives 96/9/EC and 2001/29/EC,

OJEU L 130/92.

Communication from the Commission “Europe 2020 A strategy for smart, sustainable and inclusivegrowth” COM(2010) 2020