Déjà vu.
With the release of the public consultation this week, the European Commission is once again gearing up to reform EU Copyright law, nearly a decade after launching the proposal that ultimately resulted in Directive (EU) 2019/790 on ‘Copyright in the Digital Single Market’ (CDSM). That proposal was accompanied by a separate legislative initiative that would become Directive (EU) 2019/789 on online transmissions and retransmission of TV radio programmes (SatCabII).
The Commission now seeks views from rightholders and other stakeholders on its proposed copyright reform project again.
What we know
In its targeted public consultation, the Commission has identified four areas of copyright law that the new legislation should target:
- AI, including licensing but also possibly the protection of performers’ likeness (or what the Commission calls ‘impersonification’);
- online piracy of time sensitive copyright-protected content, including live events;
- the remuneration of third-country music producers and performers for the use of their sound recordings in the EU; and,
- copyright and research.
This agenda is a veritable smorgasbord of loosely related policy topics. The parallel with the previous copyright rodeo is palpable. The CDSM Directive was also composed of a series of loosely related topics, all of which were corralled into the tech term of the day: Digital Single Market. This time it is naturally AI that preoccupies EU policymakers, as evidenced by the European Parliament’s recent resolution calling for EU-level action on AI and copyright.
Concerning the direction of travel for EU law on copyright and AI, we have little concrete detail about the plans of the Commission and the EU legislator. However, one clear lesson from EU legislative history is that any Commission proposal will open the floodgates to a barrage of amendments. While many of these new policy ideas are predictable, experience tells us to expect the unexpected. The final version will look a lot different from the original proposal. One example from the past relates to the significant expansion of Chapter 3 of Title IV of CDSM Directive concerning the fair remuneration of authors and performers. The Commission has the exclusive competence to propose legislation, but once the proposal lands in the lap of the co-legislator all bets are off.
Finally, in parallel with its preparation of this new initiative, the Commission is also conducting a review of the impact of the CDSM Directive under a separate workstream. Looking at the evolution of EU copyright law across more than a dozen legislative instruments, and the Commission’s newly identified targets for intervention, the one safe bet is that the forthcoming proposal will not reopen the CDSM Directive. This is not to say that the Directive will not be affected. Instead, the Commission will add a new layer of law.
The known unknowns
Another institution that could significantly influence the legislative process is the Court of Justice of the European Union (CJEU). Before the Commission finalises its final proposal, the Court is expected to render at least two landmark decisions on copyright, which will inevitably shape both the Commission’s evolving plans and the legislative debate later.
The first major test for EU copyright law is crystallised in the Like Company v Google (C-250/25) case, which asks many pointed copyright questions about the training of AI models and the output they generate. A Hungarian press publisher sued Google over its AI service, which had ingested its articles without authorisation and subsequently reproduced copyright-protected content in its replies to user prompts.
The Court’s Grand Chamber held a hearing in March where the judges asked probing questions, including on EU law’s application to AI models trained outside the EU. Advocate General Szpunar was due to publish his Opinion in early September, but its publication is still pending. Nevertheless, this is the most advanced copyright and AI case on the docket of the EU’s highest court. Another very similar AI case was referred to the Court in the summer – once again from Hungary – but procedurally it is at least a year behind Like Company v Google. A preliminary reference typically takes about 18 months before a judgment emerges from Luxembourg. This makes the case the only true candidate for the Court to shape the legal landscape before – or perhaps instead of – the EU legislator.
A major case on the implementation of the previous copyright Directive is also nearing conclusion. In Streamz v Belgium (C-663/24), the Court will have to grapple with several aspects of the Belgian implementation of the CDSM Directive. The case will clarify the extent of EU law’s harmonisation and Member States’ remaining competence in setting copyright rules on the remuneration of authors and performers, and the implementation of the press publishers’ right online. The judgment is due early next year, but the Advocate General will deliver his opinion on 19 November.
Looking ahead
The legislative process is likely to be long and, at times, unpredictable. Rightholders, users and other stakeholders would therefore be well advised to follow it closely, as it will shape the future of EU copyright law.
Wiggin LLP’s London and Brussels teams are recognised leaders in EU copyright law, with extensive experience advising clients on legislative reform, regulatory change and policy developments across the EU.