Whether it’s trade deals, or Brexit, uncertainty is a prominent theme at this year’s Frankfurt Book Fair—and a panel of experts, moderated by Copyright Clearance Center's Chris Kenneally, told attendees that the uncertainty extends to the European copyright arena.
In March, the European Parliament approved the Directive on Copyright in the Digital Single Market, with the stated intention of promoting “a well-functioning marketplace for the exploitation of works.” But more work lies ahead as EU member states must now update their national copyright laws by 2021 to comply with the directive.
“I think publishers have to watch this closely,” said Elizabeth Crossick, head of government relations-EU, RELX Group, explaining that while one process ended with passage of the directive, "another process is just beginning."
Swiss attorney Carlo Scollo Lavizzari, from the firm Lenz Caemmerer, agreed.
“It is the second stage, if you will. While the law has been passed, there have been many attempts to stop this from the side of big tech, and the acceptance of the law is not there yet. So, there continues to be dialog between the platforms, the large tech companies, and the creative sector, to get to the nitty-gritty: how is this going to work? So, we have the sea change in principle. But the details still need to be ironed out at the member state level.”
Adding complexity to the matter, Lavizzari explains, not all EU member states are required to adopt the directive’s provisions all at once. France, for example, has already adopted into French law the directive's "fair play" provision that seeks to provide publishers compensation from content aggregators—and that, he said, has already led to “an exchange of fire” between newspapers and search engines. In that sense, Lavizzari points out, while the directive moves Europe closer to its goal of a single digital market, the reality is that this single market could still remain somewhat fragmented from country to country as provisions of the law are adopted.
The uncertainty, the panelists agreed, could, and probably should, mean a larger role for licensing.
“You know a lot of this discussion is seen as a sort of clash between culture and creativity, and big tech,” observed former Elsevier general counsel Mark Seeley, now a public policy consultant. "And I do think there's a big question here about the degree to which licensing activity and real world discussions will take place. Certainly, the directive suggests that it should.”
And, of course, Brexit very much hangs over the process. Should the U.K. break from the E.U., there will be two territories where there is now one, and whether the U.K. would adopt all or part of the copyright directive is an open, and complex question.