We live in unprecedented times. The COVID-19 pandemic has affected governments worldwide, including the member states of the European Union, as they shift their focus from day-to-day legislation to battling the outbreak. According to several news sources, including a recent Politico article, transpositions of the new EU Copyright Directive of which Article 17 is a part will be slowed. For example, France has partially adopted the new Directive but the implementation of Article 17 will now not happen in France until the third or fourth quarter of 2020 

As Andrus Ansip, the former European Commission vice president for digital commented about the transposition of the Directive in a recent Politico article, “It will take some time for the directive to be implemented in all member states. Because of the coronavirus crisis, I think not so many people are thinking about copyright”. The crisis has also impacted the stakeholder dialogues, which will help define guidelines for implementation of the Directive across the EU. The seventh meeting was scheduled for March 30th but was postponed by the European Commission due to the crisis. 

Several Countries are Close to Adoption in 2020 

Although we cannot predict the future timing of each country, this interruption will only be temporary.  

  • It is likely that France and Italy, and possibly also the Netherlands and Denmark, will have completed the transposition before the end of 2020, with the remaining countries due to do so before the June 7, 2021 deadline.   
  •  Some member states have reportedly requested the European Commission to suspend enforcement proceedings against member states who are currently in default of their obligations to transpose other, earlier Directives. The Commission does not appear to have responded to these requests but is unlikely to start enforcement proceedings against any member state while the current situation lasts.
  • The situation in Italy should be closely monitored. The Italian government intends to transpose the Directive by Decree before the end of the year. In recent cases, Italian courts ruled that even before the Directive comes into force, platforms are directly liable for making available content uploaded by users and have awarded substantial damages. Transposition of the Directive in Italy will give platforms the benefit of new safe harbor if they comply with the requirements of Article 17(4). 

It is highly likely that the Copyright Directive will already be law in several European countries before the end of 2020. 

The June 2021 Deadline Still Applies 

This delay does not change the June 2021 deadline for EU states to adopt the Directive into law. This is fixed in the law, although it is possible that the European Commission may be flexible when it comes to enforcing this deadline. 

Plan Now 

It is important to start planning now on how to meet the requirements and understand the impact of the Directive on your business. 

Below are some resources to help you understand the Directive and how it may impact your business.