Since its introduction in 2016 as part of the EU’s Digital Single Market  (‘DSM’) strategy, the draft Copyright Directive has been batted back and forth between the legislative bodies of the EU. It has caused significant controversy and years of ferocious lobbying, but following numerous revisions and amendments, the text was finally approved by the European Parliament on 26 March 2019.

However, the draft Copyright Directive remains in choppy waters.

The final step of the process before the Directive is adopted and enacted is to get it approved by the Council of the EU which is formed of government ministers from each Member State (and is not to be confused with the European Council or the Council of Europe). It is the Council’s role to adopt EU laws and coordinate EU policies. Whilst the final text had been agreed in trialogue between the European Commission, the European Parliament and the Council of EU in March, not all Member States are in favour it.

On 5 April 2019, the Netherlands, Luxembourg, Poland, Italy and Finland released a joint statement stating whilst they support the Directive’s objectives, they cannot express consent to the proposed text of the Directive. They consider that the Directive “in its current form is a step back from the Digital Single Market rather than a step forward” in that it fails to deliver on the Directive’s aims, being “to enhance the good functioning of the internal market and to stimulate innovation, creativity, investment and production of new content, also in the digital environment”. The key concerns expressed in the joint statement are that the draft Directive does “not strike the right balance between the protection of right holders and the interests of EU citizens and companies”; that it will have a “negative impact on the competitiveness of the EU DSM”; and that its “lack of legal clarity will lead to legal uncertainty for many stakeholders concerns and may encroach upon EU Citizen’s rights”.

Belgium and Slovenia are expected to abstain from the vote.

With these seven Member States forming 25% of the Council, the Copyright Directive could still be carried by a majority vote. If it is approved, the legislative act will be adopted¹. It will then be signed by each of the the Presidents of the European Parliament and the Council before being published in the Official Journal of the European Union. Member States would then have two years to implement the objectives and rules of the Directive through their own national laws. If it is voted down, the draft may face further debate and redrafting.

The Council’s vote is expected to take place on 15 April 2019.