Gregor Kleinknecht’s comments were originally published in IBA Global Insight and can be accessed here. 

The EU has made an attempt to overhaul Europe’s laws on copyright and bring them into the digital age with a controversial new copyright directive, which entered into force in June 2019.

The Directive on Copyright in the Digital Single Market (the ‘Directive’) received its final clearance in April 2019. EU Member States need to enact it into their national law by 2021.

The process to reform copyright rules has been far from easy, however.

For some lawyers, the key metric to determining if the Directive will be a success is whether it will generate significant new licensing fee income for publishers and rightholders. ‘It would be tempting to say that content creators are the winners, while users and the internet giants are the losers,’ says Gregor Kleinknecht, a partner at Hunters Law. ‘Whether real life works out like that very much remains to be seen,’ he adds.

Kleinknecht notes that Google, for example, has indicated it won’t pay EU news publishers for the right to show content on its news service. ‘Article 17 of the Directive gives publishers and rightholders the power to control how much of their content can be shown for free. Google will simply show that free content but not take out licensing deals to show extra content,’ explains Kleinknecht.

‘Publishers now face the challenge of deciding whether they are at risk of losing access to the public and potential readers if they are overly restrictive with granting access to free content,’ adds Kleinknecht. He points to the precedent created in Spain, where Google withdrew its news service after the Spanish government legislated to require aggregators like Google to pay to link to news articles.