Bulgaria & the DSM Copyright Directive   

Does transposition delay equal opportunity?

EU Member States were supposed to transpose Directive (EU) 2019/790 on copyright and related rights in the Digital Single Market (the Directive) into their respective national legislations by 7 June 2021. The fact that Bulgaria did not comply with this obligation does not seem too strange against the current political backdrop - dissolved national assembly and upcoming parliamentary elections. But Bulgaria is not alone in its delay. A reference to the European e-Justice Portal shows that to date only four Member States have transposed Directive (EU) 2019/790.

Why the delay and should we in this case, contrary to the saying, blame the game and not the players?

Directive (EU) 2019/790 is part of the EU‘s overall strategy to modernise the set of legislative instruments governing the Community‘s intellectual property system. It contains obligations for Member States to introduce various rules regarding the use of copyright-protected subject matter for scientific and academic purposes, the use of out-of-commerce works, rights of publishers of press publications, etc.

However, these topics are often overlooked in favour of the notorious Article 17 of the Directive, concerning the so-called "upload filters" and designed primarily to "fill the value gap" in the income that authors of audio and video works receive from the use of their works in online content-sharing platforms. In simplified terms, it can be concluded that pursuant to Article 17 of the Directive, in certain cases the online content-sharing service providers have the obligation to ensure the automatic prevention of copyright infringements on their platforms.

These rules significantly revise the regime established by the Directive on electronic commerce and the conditions it introduces on the exclusion of the liability of information society service providers.

Article 17 of Directive (EU) 2019/790 has been the subject of considerable academic analysis - arguably more than the scholarly discussions surrounding any other provision of current European legislation. What is more, this is happening even before its transformation into applicable law. Undoubtedly, the conflicting interests of authors and collective management organisations, on the one hand, and of Internet users and content-sharing platforms, on the other, give rise to different interpretations and ideas for the transposition of the Directive into national law.

Under these circumstances, it is not surprising that Member States are unsure of the best way to implement the discussed provisions. In March 2020, the Bulgarian Ministry of Culture launched a stakeholder consultation procedure on the implementation of the Directive. In the course of the consultations, many organisations expressed their opinions. As expected, a large number of them were dedicated to the notorious Article 17.

This year, the Ministry of Culture proposed a Draft Amending and Supplementing Act of the Copyright and Neighbouring Rights Act, reflecting the opinions gathered during the consultation procedure, after which a second process of discussing the proposed texts was launched. These local processes are an equivalent to the ones carried out at Community level under the supervision of the European Commission, which in accordance with Article 17, para. 10 of the Directive, has the obligation to issue a guidance on the application of Article 17. Given that in one way or another, most of the principal stakeholders participated in the discussions organised by the European Commission, it is understandable why their outcome was widely anticipated.

On June 4, 2021, i.e., 1 working day before the transposition deadline, the Guidance on Article 17 of the Directive became a fact and the European Commission formally fulfilled its obligation. Through the lens of civil law, however, this particular action by the Commission may also evoke thoughts of bad faith, as the purpose of the Guidance is primarily to facilitate the transposition (rather than just the interpretation) of the controversial Article 17. It seems hardly possible that any legislature would have had the capacity to reflect the Guidance in its respective Draft Act within one working day. Nevertheless, it should be noted that for the most part the Guidance, which is not binding, recommends that national legislatures leave room for analysis of any potential issues on a case-by-case basis. In this sense, if a Member State has introduced the Directive before the Commission issued the Guidance, the gaps should be few.

When it comes to the implementation of the Directive in the Bulgarian legislation, we should not ignore the "elephant in the room" - the fact that the Court of Justice of the European Union (CJEU) is to rule on a case brought by Poland regarding Article 17, para. 4, items "b" and "c" (Case C-401/19), which allegedly contradict the Charter of Fundamental Rights of the European Union. The outcome of this case may be the annulment of the provisions on upload filters. However, it should be noted that the annulment of a European Directive or individual provisions thereof does not automatically lead to the revocation of national measures for its implementation. This was the case with Directive 2006/24/EC on the retention of user traffic data where, in Joined Cases C‑293/12 and C‑594/12, the CJEU found that the principle of proportionality had been infringed in view of Articles 7 and 8 and Article 52, paragraph 1 of the Charter. However, since Directive 2006/24/EC was declared invalid, national laws adopted on its basis have remained in force temporarily, which inevitably creates prerequisites for legislative problems.

Based on the aforementioned circumstances, Bulgaria’s delay in the transposition of Directive (EU) 2019/790 may have certain positive aspects. It opens up the possibility of adopting an Act that simultaneously reflects the European Commission’s Guidance on Article 17 of the Directive, and the outcome of the C-401/19 case.