FEP is active on European initiatives and discussions related to copyright, which is core to publishers’ activities and to the sustainability of the overall publishing sector. The protection of exclusive rights, freedom of contract and the fight against piracy are key aspects defended by FEP. To this end, FEP collaborates with other cultural sectors and attends relevant events to present its position to the EU institutions. Despite the recent adoption of the new Copyright on the Digital Single Market Directive, copyright remains relevant in current legislative debates concerning platform regulation.

Under the new von der Leyen Commission, Thierry Breton, in charge of the internal market, is the Vice-President and Commissioner responsible for copyright policy which is dealt with at a technical level by DG CNECT.

In the Parliament, the relevant committees are JURI (Legal Affairs), IMCO (Internal Market and Consumer Protection), ITRE (Industry, Research and Energy), and CULT (Culture and Education). In the Council, copyright issues are discussed by the Working Group on Intellectual Property.

In April 2019, after two and a half years of intense negotiations, the Directive on Copyright in the Digital Single Market was adopted; marking the most significant European copyright review since 2001. The adopted text introduced four new mandatory exceptions for illustrations for teaching; the use of text and data mining for research and non-research purposes; and the preservation of cultural heritage. It also created a legal mechanism to facilitate collective licensing agreements for all types of out-of-commerce works which are held in a permanent collection of cultural heritage institutions. It gave Member States the option of granting book publishers the right to claim a share of the compensation for the uses of the work made under an exception.

The Directive stops the irresponsible behaviour of digital platforms who communicate copyright protected works to the public by formally recognising that they are liable for the content hosted on their services by introducing new obligations for platforms to obtain licencing agreements with rightsholders and to deploy measures in cooperation with them to fight effectively against unauthorised content.

Finally, authors were granted mandatory mechanisms to ensure they receive appropriate and proportionate remuneration; to request additional remuneration from their contractual partners when revenues generated by the work are too low; to settle disputes related to the application of obligations imposed on publishers and producers; and transparency obligations according to which authors would receive information on the exploitation of their work from their contractual partners. They were also granted the possibility to revoke the rights on their works they transferred or licensed should there be no exploitation of the work by the contractual partner. Following the adoption of the Directive, the Commission published guidance on 4 June 2021 for the implementation of Article 17, following a stakeholder dialogue process in which FEP participated.

In December 2020, the Commission proposed two new Regulations to update the rules for online platforms. The Digital Services Act (DSA) covers the obligations of digital services and the Digital Markets Act (DMA) introduces ex-ante rules for “gatekeeper” services. Due to their large scope and the policy they modernise, this package is considered to be the most important EU digital reform in 20 years and will be politically sensitive. The texts are not expected to come into force before 2024.

The DSA updates the existing E-Commerce Directive (from 2000) while introducing new obligations in the field of content moderation and transparency. The existing liability regime is preserved, while the requirement for notice and action are harmonised. The new obligations for content moderation (including trusted flaggers and repeated infringers policies) on online platforms vary depending on the size of the platform with the biggest platforms being subjected to additional audits to prevent systemic risks.

The DMA defines a category of online services (the gatekeepers) which are deemed to be dominant on European markets and are therefore subjected to a number of obligations to protect the market from anti competitive behaviours (such as self-preferencing or most-favoured-nation clauses). Both texts introduce important fines for services not respecting their rules; the DMA even going as far as imposing mandatory divesture for gatekeepers that consistently break their obligations.

Article 17 is also being assessed by the CJEU, Poland having requested its deletion for allegedly being contrary to fundamental rights. The Avocat General gave on the 15 July 2021 its opinion, and considers that Article 17 is compatible with fundamental rights, thus advising the Court to rule in favour of Article 17, though with an interpretation close to the Commission’s guidance. The CJEU ruling is expected by the end of 2021.

On the 27 July 2021, the Commission opened an infringement procedure against the 23 Member States that did not yet fully transpose the Directive, giving them 2 months to respond to the letter of formal notice and take the necessary implementation measures. Should Member States not provide a satisfactory answer, the Commission may decide to continue the infringement procedure by issuing reasoned opinions.

FEP is engaging with the co-legislators to ensure that these important texts reinforce the tools available for publishers to fight efficiently against online piracy and protect themselves from the abuses and anti-competitive behaviours of giant platforms. FEP also collaborates with other rightsholders and other organisations on common interests. Beyond its consequences on the cultural sectors, the COVID-19 crisis also sparked copyright-relevant debates with some organisations weaponising the crisis to call for a reduction of copyright protection, despite the initiatives publishers (and other rightsholders) took to fulfil their societal responsibility (e.g., in the field of education).
FEP remains vigilant against these unfair challenges and participates in a series of events to demonstrate on one hand, the consequences of COVID-19 for publishers and, on the other hand, the exceptional initiatives they took to help people access books legally.

The new European Commission made the creation of a European framework around Artificial Intelligence (AI) one of its priorities for this mandate. Debates on AI have an impact on copyright, as these technologies are increasingly used in the field of cultural creation. While the new Copyright Directive provides a legal framework for the use of works to feed an AI, reflexions are under way to determine if and how the current copyright framework could apply to AI production. Following the presentation of its Intellectual Property (IP) Action Plan in November 2020, the Commission ordered a study to explore the use of new technologies in rights data management and to explore the forthcoming challenges that AI sets on copyright.