Documents considered by the Committee on 6 June 2018 Contents

2Copyright in the Digital Single Market

Committee’s assessment

Legally and politically important

Committee’s decision

Not cleared from scrutiny; further information requested

Document details

Proposal for a Directive on Copyright in the Digital Single Market

Legal base

Article 114 TFEU; ordinary legislative procedure; QMV


Business, Energy and Industrial Strategy

Document Number

(38076), 12254/16 + ADDs 1– 4, COM(16) 593

Summary and Committee’s conclusions

2.1This Directive forms part of the Commission’s “Copyright in the Digital Single Market” package of September 2016. Its broad range of measures was summarised in the Report of our predecessor Committee, referenced at the end of this Chapter.

2.2The other legislative component of the package is a proposed Regulation on the exercise of copyright and related rights applicable to certain online transmissions of broadcasting organisations and retransmission of television and radio programmes, which was the subject of an earlier Report.4

2.3In the Government’s EM,5 the Minister (Sam Gyimah MP) expressed some initial caution over a new press publications right, further regulation of online intermediaries and additional remuneration provisions which interfere with freedom of contract (‘fair remuneration’). The Committee notes that in his letter of 30 April 2018 the Minister says that “amendments [to the Proposal] have been positive and in line with the UK’s negotiating position”.

2.4In particular, with regard to ‘fair remuneration’ the Minister notes that the text of the Proposal at the time of writing (23 April 2018) introduces some flexibility in the way a contract adjustment mechanism for rightsholders can be given effect to in Member States, which would allow existing collective bargaining arrangements in the UK to be maintained, in line with Government negotiating objectives. (The 17 May and 25 May 2018 text is unchanged in this regard.)

2.5In his letter of 30 April 2018 the Minister identified two main outstanding issues which remained subject to detailed Council discussions: press publishers’ rights and “the value gap” (when content is uploaded to an online content sharing service provider by users of the service provider, without permission from the rights holder). The Minister was of the view that although a consensus on these issues was emerging amongst Member States, further agreement on the detail would be necessary.

2.6The text6 has moved on since the Minister last wrote. In particular, with regard to the provisions concerning use of protected content by online content sharing service providers.7 Other notable changes8 are the inclusion of an obligation on Member States:

2.7We are grateful for the responses from the Minister to the matters raised by our predecessor Committee and the updates on the negotiations to this Committee. The Committee ask for a full update on the Council position going into trilogue with the European Parliament.

2.8The Committee also asks for clarification on the matters below within 15 working days and a further update in the event of any significant developments.

a)The Minister says11 that “ The Government is of the view there should be greater clarity in the law in this area [the uploading of content to online content sharing sites without permission from right holders]”. The Proposal12 introduces a copyright specific regime for exemption from liability (in place of the exemption from liability provided for in Article 14 of Directive 2000/31) in respect of ‘acts of communication’13 or ‘making available to’ the public of on-line content where no authorisation has been given by the rightsholder. In particular, one limb of that exemption14 is dependent on the online content provider demonstrating that it has made “best efforts to prevent the availability of specific works or other subject matter by implementing effective and proportionate measures…to prevent the availability on its services of the specific works or other subject matter identified by rightsholders…”. It is not clear to the Committee what steps an online content sharing service provider would need to take in order to meet the threshold established by this provision and so avoid liability in a given case. The Committee would be grateful for clarification as to how this provision meets the Government’s objective of clarity and so provides legal certainty to online content providers.

b)Could the Government indicate whether it intends to address the issue of liability (in the context of uploading of content to on line content sharing sites) in its Future Arrangements Agreement with the EU, in particular as regards the liability of UK established online content sharing sites operating in the EU.

c)In his letter of 30 March 2017, the then Minister (Jo Johnson) helpfully informed the then Committee of stakeholder views concerning various aspects of the Proposal. As regards the liability of online service providers which host copyright content those views indicated a substantial number of responses from members of the public who raised concerns around privacy, censorship and data protection. Could the Minister please set out how the current text of the Proposal addresses those concerns.

d)Could the Government explain (i) how they intend to meet the obligations set out at paragraph 2.6 above if the transposition date for the Directive falls within the UK’s transitional/implementation period (ie currently until 31 December 2020) and (ii) the extent to which the UK is likely to want to mirror these provisions in domestic legislation post the transitional/implementation period (ie post 31 December 2020).

e)More generally, whether it is intended to include, in the Future Relationship agreement with the EU, the substance of the legislative proposals and, if not, the extent to which the UK is likely to want to mirror, after the transitional/implantation period (post 31 December 2020), the substance of the legislative proposals where there is a deviation from current UK law.

f)In his letter of 30 March 2017 the then Minister (Jo Johnson) identified the provisions on out-of-commerce works and the exception for education as having cross-border aspects which would require further agreement with the EU if they were to apply to the UK. The Minister said that “the extent to which the UK would wish to mirror these proposals would depend on the form the Directive takes when it is adopted”. Could the Minister update the Committee on whether the Government intends to seek agreement with the EU regarding those aspects of the Proposal.

2.9We ask for a response within 15 working days. In the meantime we retain the Proposal under scrutiny.

Full details of the documents

Proposal for a Directive on Copyright in the Digital Single Market: (38076), 12254/16 + ADDs 1– 4, COM(16) 593.


2.10Fuller details of the Proposal are set out in the Report of the Predecessor Committee referenced below.

Previous Committee Reports

See: Seventeenth Report HC 71–xv (2016–17), chapter 5 (2 November 2016).

4 Considered by the Committee on 28 February 2018.

5 3 October 2016

6 8672/18 17 May 2018 and 9134/18 of 25 May 2018 (and the earlier version of 17 May 2018).

7 Article 13 of the Proposal, 25 May 2018 version.

8 In the text of 17 May 2018, replicated in the text version of 25 May 2018.

9 ‘Best efforts’ by a service provider to prevent the availability of works being hosted on its service for which it holds no licensing agreement with the rights holder.

10 See Article 13(4)(a) of the Proposal, 17 May 2018, 8672/18.

11 Letter of 30 April, under the heading “value Gap”.

12 25 May text 2018 latest text.

13 Article 13 of the Proposal, 25 May 2018 text.

14 Article 13(4)(a).

Published: 12 June 2018