illustration of EU copyright law European copyright law
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The EU's new copyright rules, designed to bring clarity to rights-holders and platforms in the digital age, are still fraught with uncertainty, according to lawyers in Europe and the US.

The 28 countries of the EU agreed to new copyright rules in April, after 18 months of tough negotiations among themselves and with European lawmakers.

The Directive on Copyright and Related Rights in the Digital Single Market, also known as the EU Copyright Directive, was intended to update rules for an era in which so much content, including music and videos, is shared and consumed via digital platforms. It was also meant to harmonise the approach to copyright among the 28 countries, which have different legal and cultural traditions that have shaped the protection of authors' and other creators' rights.

But the final version of the directive contains compromises between competing interests, and that has left it open to some interpretation – and ultimately, disagreement.

"There's a lot of legal uncertainty," said Benoit Van Asbroeck, a Brussels-based partner with Bird & Bird who specialises in copyright law.

Most of the criticism of the final version of the directive focuses on Article 17, which deals with the use of protected content on platforms. The desire to reach a consensus for this complex area of the law has created new uncertainties, lawyers say. Even more confusingly, it was known as Article 13 in an earlier draft.

"Article 17 is a marriage between a compromise and a fudge," said Francine Cunningham, head of the regulatory practice at Bird & Bird. "It contains a lot of language [that] is ambiguous or elastic."

The article requires platforms to make "best efforts" to obtain authorisation from rights-holders before using their content. If platforms cannot demonstrate they have made best efforts, they can be held liable and sued for distributing unlicensed content.

Cunningham said "best efforts" sounds more like a U.S. legal concept than one with recognised meaning in EU law. "There's room for discussion," over what represents "best efforts", she said.

The EU's member states have two years to implement the directive in their national legislation. This process could also add further uncertainty as countries apply the EU rules according to their own legal and cultural traditions. "There is room for divergences," Cunningham said.

Van Asbroeck said the validity of Article 17 could be subject to legal challenge once the directive comes into effect. He predicts that a future case could end up being referred to the European Court of Justice by a national court in an EU member state.

"The royal route is [for a platform] to refuse to pay and [then], when it is sued by the rights-holder, to raise an invalidity plea," he said, adding that the platform would then invite a national judge to refer the case to the Court of Justice of the EU via a preliminary ruling.

Scott Pink, a Silicon Valley-based lawyer with O'Melveny & Myers, said the new law could make it "so daunting" for platforms to obtain licences for the hundreds of thousands of pieces of content they carry.

While some platforms may already have some filtering in place, there is concern about the cost of developing filtering, especially at the scale required, for those that don't, Pink said, noting that it would be useful if "reasonable standards" were established that clarify how filters should work in practise.

Pink welcomed a suggestion included in the directive calling on rights-holders and platforms to work together on effective implementation of the legislation at the national level.

Unless some further clarity is reached before the directive takes effect, lawyers say, the legislation designed to bring greater certainty to the copyright issue looks destined to generate a new wave of legal disputes and litigation.

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