10 things that happened whilst I was on maternity leave (and two that didn’t)
Number 7: Intellectual property law moves forward – copyright and trade secrets
(and more Digital Single Market legislation too)

The final text of the much-debated EU Copyright Directive was agreed in April 2019 and published in the EU Official Journal on 17 May 2019. As it is a Directive (rather than a Regulation, like the GDPR), it needs to be transposed into law by each EU Member State. The deadline for this is 7 June 2021, and the UK’s approach may be impacted by Brexit (see also article number 11 in my series).

The full title of the Copyright Directive is: Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC. Its aims are to modernise copyright law, to provide more cross-border access to online content, to give wider opportunities to use materials in education and research, and to have a better functioning copyright marketplace.

Two Articles caused particular controversy during the legislative process: ‘Article 13’, (which is now Article 17 in the final text) and ‘Article 11’ (which is now Article 15 in the final text)¹.

• Article 17 (formerly Article 13): Responsibility of online content-sharing providers for content uploaded by users

  This Article applies to "online content-sharing service providers". These are providers of services where a main purpose is to store and give the public access to a large amount of copyright-protected works in order to make a profit. This would capture social media services such as YouTube (provided by Google). It excludes non-for-profit online encyclopaedias (such as Wikipedia), educational or scientific sites; open source sharing platforms and online marketplaces; and certain cloud services.

  The Article states that, by giving public access to content uploaded by users, the provider will be performing an act of "communication to the public" or "making available to the public" (for the purposes of copyright legislation). Following on from this, the provider needs to obtain authorisation from rightsholders in advance. Such authorisation needs to cover non-commercial users of the service, i.e. the person who uploads the content.

  This requirement has caused legal and practical concerns over how such authorisations will be obtained, and the liability of the service provider if a user uploads content without such an authorisation. To benefit from a carve-out from liability, content-sharing providers will need to have mechanisms in place to use "best efforts" to obtain licences and to ensure unavailability of specified works. They must also act expeditiously to remove unlawful content of which they are notified – many content-providers have a process for this in place already.

• Article 15 (formerly Article 11): copyright protection for online press publications

This Article gives online press publications new exclusive rights under copyright law relating to the online use of their press publications by information society service providers (for example search engines, social media and online news aggregators). These exclusive rights are the reproduction right (i.e. copying) and the right to make available to the public.

The rights do not apply to individual words or "very short extracts" (which may be useful for search engines). Whilst a lot of press surrounding this Article has referred to a "link tax", the protection explicitly excludes linking. However, the new rules could have significant impact on news aggregators who are used to providing more substantial extracts of news stories alongside the links. See also article number 8 in my series in relation to other copyright issues associated with linking.

The new right will not change the existing copyright protection given to other parties, such as authors of literary works (such as online articles). Infringement of the new press publication rights might already be an infringement of other copyright. Authors whose works are incorporated into press publications must also be given an "appropriate share" of any revenues received from press publishers for licensing their rights.

The press publication rights last for two years from publication (reduced from 20 years in the original Directive proposal), starting from the 1 January in the following year. This is a much shorter period than the protection given to the author of a literary work. UK copyright for literary works lasts for 70 years following the author’s death (under the Copyright, Designs and Patents Act 1988).

The EU Trade Secrets Directive² was adopted in June 2016, and was required to be implemented by Member States by June 2018. In June 2018, the UK enacted the Trade Secrets (Enforcement, etc.) Regulations 2018 to fully implement the Directive.

The Directive did not cause a huge stir in the UK, as existing UK law already provided protection for trade secrets. Unauthorised disclosure of a trade secret might have already amounted to a breach of confidence (the law of which has been well-established by case law) or a breach of a contractual obligation to protect confidential information.

The new Regulations now provide a statutory definition of a trade secret, and clarify how the new protection for trade secrets fits in with the existing UK law of breach of confidence.

A trade secret means information which: (a) is secret, i.e. not generally known or readily accessible; (b) has commercial value because it is secret; and (c) has been subject to reasonable steps to keep it secret by the person in control of it.

The "acquisition, use or disclosure" of a trade secret is unlawful where it amounts to a breach of confidence under existing UK law. Actions for breach of confidence can still be brought, and there is now also the new statutory right under the Regulations. The Regulations also contain additional provisions to implement the Directive relating to time limits for proceedings and remedies for infringement.

The EU’s Digital Single Market strategy kicked off in 2015, with the aim to make the EU’s single market fit for the digital age. Legislation has been adopted in areas including online sales, consumer protection, copyright, geo-blocking, ePrivacy (see also article number 12 in my series), electronic communications and taxation.

As well as the Copyright Directive, three other recent pieces of Digital Single Market legislation include the following.

• Directive on contracts for the supply of digital content and services: Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services. This must be implemented by Member States by 1 July 2021, with measures to apply from 1 January 2022.
• Directive on contracts for the sales of goods: Directive (EU) 2019/771 of the European Parliament and of the Council of 20 May 2019 on certain aspects concerning contracts for the sale of goods, amending Regulation (EU) 2017/2394 and Directive 2009/22/EC, and repealing Directive 1999/44/EC. This must be implemented by Member States by 1 July 2021, with measures to apply from 1 January 2022.
• EU Transparency obligations for online platforms (for the benefit of business users): Regulation of the European Parliament and of the Council on promoting fairness and transparency for business users of online intermediation services (2018/0112 (COD)). This EU Regulation will apply 12 months from its publication within the EU Official Journal (which I have not yet seen as at the date of this article).

Further information about the EU Digital Single Market strategy is available on the EU Commission’s website.