EU Commission Sends Six States to Court for not Transposing Copyright Rules

The European Commission issued on Wednesday (15 February) 11 referrals to the EU’s Court of Justice after six member states failed to transpose copyright measures into national law.

Last May, formal notices of complaint were issued to 13 European countries urging them to codify in their national legislative frameworks the Copyright Directive and another initiative dealing with copyrights in the context of online transmissions of TV and radio programmes. 

Adopted in 2019, the Copyright Directive ushered in the reform of the EU’s copyright rules to introduce protections and the right to remuneration for publishers and rightsholders in an environment dominated by major online platforms.

A separate directive, similarly adopted in 2019, focuses on TV and radio programmes and the rules surrounding their retransmission throughout the EU. 

The uptake of the new copyright rules at the national level was slow. Only Hungary, Germany and the Netherlands had transposed the Copyright Directive by the 7 June 2021 deadline, with Malta completing the process shortly after.  

On 27 June 2021, the Commission launched infringement proceedings against the 23 remaining states, sending them letters of formal notice requesting details of their plans to implement the reforms. 

By May 2022, however, full transposition had yet to be achieved in many capitals.  As a result, the EU executive issued 13 states – Belgium, Bulgaria, Cyprus, Denmark, Greece, France, Latvia, Poland, Portugal, Slovenia, Slovakia, Finland and Sweden – with reasoned opinions, serving as official calls for compliance and warning of potential penalties.

The recipients were given two months in which to take steps to address their failings, with referral to the CJEU outlined as a potential next step for the Commission in the event of inaction.

Approaching one year from this latest initiative, Bulgaria, Denmark, Finland, Latvia, Poland, and Portugal have been referred to the EU Court for failing to notify the Commission of their transposition of the Copyright Directive. 

All of these states, except Denmark, have also been referred in separate cases for incomplete transposition of the rules on online TV and radio transmissions. These referrals came as part of the Commission’s February 2023 infringements package. 

In addition to passing the cases on to the CJEU, the Commission also has the power to call on the Court to impose financial sanctions on the offending states. 

Slow transposition has not been the only controversy linked to the Copyright Directive. Its measures have caused significant tensions between rightsholders and major digital players.

This tension became particularly evident in France, which became the first country to transpose the measures covering publisher-platform negotiations through the 2019 adoption of a law that allowed press publishers to seek compensation for re-using their material by online platforms.

Tussles followed between outlets and major tech companies such as Google, which was fined heavily by French regulators for failing to negotiate in ‘good faith’ with publishers over remuneration.

Another sticking point of the controversial copyright law is Article 17, which makes platforms liable for the unlicensed copyrighted material they host, sparking concerns that this would lead to the widespread use of automated removal mechanisms. 

In April 2022, after the Polish government launched a case arguing that the provision could endanger the freedom of speech by removing legal content, the CJEU upheld the article, deeming the Directive to include adequate protections. 

Speaking to EURACTIV last year, former MEP Felix Reda speculated that confusion over the implementation of this particular article had contributed to the delay in the directive’s transposition in several member states.