The Digital Single Market

Posted on: February 28th, 2020

You may be familiar with the Digital Single Market (DSM) strategy, particularly the controversy surrounding copyright. The discussions surround whether large online platforms (such as YouTube and Google), should monitor content and pay royalties to creators for content shared via their platforms.

Copyright protects a creator’s work, entitling both recognition and appropriate remuneration for its use. But entitle does not mean ensure, and content is often retrieved and redistributed online without recognition or payment to the rights holder.

What is the DSM?

The DSM strategy pre-Brexit was a top priority for the Government. The aim is to create one digital market that coincides with an expanding digital age. The DSM will create regulations for seamless access to online resources and promote free digital movement, irrespective of the user’s place of residence. The DSM consists of three pillars:

  1. Improving digital access – removing existing barriers to enhance access to online goods and services for consumers and businesses across Europe. Increasing consumer protection and promoting fair competition at the same time.
  2. An environment that can thrive – improving the digital environment for networks and services by protecting against concerns such as cybersecurity and data protection.
  3. Digital as a driver for growth – maximising growth to create an inclusive digital environment for consumers and businesses throughout the European Union.

Does the DSM strategy apply to the UK post Brexit?

Since the UK left the European Union in January 2020, the question remains whether the DSM strategy will be implemented post Brexit, as it will not automatically be incorporated into UK domestic law. The UK has a relatively short transition period of 11 months to continue negotiations on the finer details of the future economic relationship.

Copyright in the Digital Single Market Directive (Copyright Directive)

Adopted by the European Commission in April 2019, the Copyright Directive has caused some uncertainty, particularly with large tech and media companies and internet users. So what impact will the proposed directive have?

The aim of the Copyright Directive is to promote “a fair, efficient and competitive European copyright-based economy” and rules that are fit for the digital age. The UK supported the legislation, although the Government’s stance has seemingly altered over recent months:

  • October 2019 – Secretary of State for Digital, Culture, Media and Sport announced that there was no reason for the UK to diverge from implementing the DSM strategy. The UK at that time wanted to mirror the directive’s requirements.
  • January 2020 – only three months later and it is reported that the UK will not implement the Copyright Directive, a complete reversal on earlier suggestions.

There is no clear-cut reason why the Government’s views have changed, although, it is likely that Brexit and the controversy surrounding Articles 15 and 17 will have contributed.

Article 15 and Article 17 explained

The Copyright Directive contains numerous provisions but Articles 15 and 17 have received the most attention.

  • Article 15 (previously known as Article 11) – referred to as “link tax”, prohibits online platforms from linking content without the prior authority of the author. Critics are concerned that large media corporations would dominate the internet, as they have resources available to link new articles to their sites and pay for the right to use such content. This is a luxury that may not be available to smaller businesses.
  • Article 17 (previously known as Article 13) – known as the “upload filter”, has faced criticism due to its potential effect on online freedom of expression. Concerns stem from Article 15 promoting surveillance and control over online users. This inevitably leads to preventing online users uploading copyrighted content without the creator’s prior approval. Extensive systems would need to be in place to monitor any content uploaded for associated copyright infringement.

Of course, many online platforms are simply that; a platform, they do not control the content that is uploaded by users. A requirement to monitor content for associated copyright and reimburse the creator could avert large online platforms allowing users to freely redistribute content. This may result in a detrimental effect on content availability and freedom of expression online.

So, will the UK implement the Copyright Directive?

Reports have suggested the government has no intention to do so and this approach is likely to be welcomed by many UK consumers and businesses.

The deadline to transition the Copyright Directive into domestic law is June 2021. However, there will be no requirement for the UK to implement the directive, because the post Brexit transition period expires in December 2020.

In theory, the DSM strategy seems to be a positive and forward thinking idea, providing one space for digital innovation and extending content available to users. Unsurprisingly, some last minute tweaks were made to the much debated Articles prior to the directive being adopted, which alleviated some of the earlier concerns.

Needless to say, it is by popular opinion that implementing the directive will enable tech-friendly copyright provisions in free trade deals with other countries. This will be beneficial to consumers and business operating in the UK. We are eager to see how the negotiations over the next 11 months will unfold – watch this space!

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