The "Directive on copyright and related rights in the Digital Single Market" was published in the Official Journal of the European Union on May 17. It intends to amend the current legal framework on copyright to make it fit for the digital environment we live in.
But although the objectives of the Directive are noble, it has already repeatedly been the subject of heated debates and more heated debates are to be expected before 7 June 2021. By then the Member States will have to transpose the Directive into national law.
This article briefly discusses the most controversial article of the Directive, article 17 with regards to the "Use of protected content by information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users"
Authorization and liability
Article 17 seeks to reinforce the position of authors of copyrighted works used by online content-sharing service providers (hereafter "OCSSPs") and to foster the development of the licensing market shared between rightsholders and OCSSPs such as YouTube, Google News and Facebook.
On the one hand, rightsholders should receive appropriate remuneration for the use of their works or other subject matter. On the other hand, as contractual freedom should not be affected, rightsholders should not be obliged to give their authorization for use or to conclude licensing agreements.
Although the recitals of the Directive clearly state that licensing agreements should be fair and keep a reasonable balance, there are concerns that the rightsholders will either not be willing to grant authorization or ask unreasonable remunerations.
The OCSSPs, in the absence of license agreements, will be liable for any copyright infringement resulting from protected content uploaded to their platform, unless they can demonstrate that they comply with certain best efforts and actions which in practice means that they will have to introduce filter and blocking mechanisms. These mechanisms could obviously lead to over blocking and filtering of legitimate use. Clearly serious concerns.
It must be noted that the Directive only targets OCSSPs that play an important role in the online content market scene competing, for the same audiences, with other online content services, such as online audio and video streaming service.
The Directive foresees a definition of "OCSSPs", meaning a provider of an information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organizes and promotes for profit-making purposes.
The definition does however not clarify what "the main or one of the main purposes" is, nor what "a large amount of copyright-protected works" means. It is clear that this definition does not provide legal certainty and hence lots of room for interpretation.
Providers of services, such as not-for-profit online encyclopedia (e.g. Wikipedia), not-for-profit educational and scientific repositories, open source software-developing and -sharing platforms, providers of electronic communications services, online marketplaces (e.g. eBay), business-to-business cloud services and cloud services that allow users to upload content for their own use (e.g. Microsoft 365), are not to be considered OCSSPs within the meaning of this Directive.
Exceptions are also foreseen for start-up service providers. OCSSPs set up less that than 3 years ago, with an annual turnover lower than EUR 10 million, and average monthly unique visitors below 5 million, will be subject to much lighter obligations than the large, established ones. This aims to prevent that smaller or non-commercial OCSSPs disappear from the internet or that new platforms are discouraged to enter the market.
The filter and blocking mechanism
In situations where the OCSSPs cannot obtain a license from the rightsholders, the OCSSPs will not be liable if they can demonstrate that they have:
- made best efforts to obtain an authorization; and
- made best efforts to ensure the unavailability of specific works for which the rightsholders have provided the service providers with the relevant and necessary information; and
- acted expeditiously, upon receiving a sufficiently substantiated notice from the rightsholders, to disable access to the notified work and made best efforts to prevent its future uploads.
There will obviously be a lot of debate on what are to be considered "best efforts". The Directive refers to the principle of proportionality and that the type, the audience and the size of the service and the type of works or other subject matter as well as the availability of suitable and effective means and their cost for service providers, should be considered. Again, there is a lot of room for interpretation.
The second condition is the most controversial one, "to ensure the unavailability", imposes a filter and blocking mechanism. What kind of mechanism? The OCSSPs only have to filter and block content for which the rightsholders have provided them with information which is necessary to filter and block.
Finally, the third condition imposes a "notice and keep down" mechanism as the OCSSPs have to make best efforts to prevent that noticed works will be re-uploaded.
The main concern is that content will be blocked which should not be blocked, either because the content is not protected, or because there is no infringement, for instance because an exception to copyright applies. The Directive does not clarify how Member States should manage this concern.
The directive only provides that Member States will have to ensure that users can rely on the following exceptions or limitations: quotation, criticism, review, use for the purpose of caricature, parody or pastiche. This seems to be just a mere confirmation of the case law developed by the Court of Justice of the EU over the past decades with regard to these exceptions. The Directive further states that the application of this mechanism shall not lead to any general monitoring. This too seems to be nothing else but a mere reference to the case law of the CJEU in this regard and it must be awaited whether in practice the mechanism will not turn out to be exactly what the EU wanted to avoid, namely a general monitoring obligation.
Complaints and redress mechanism
It thus seems inevitable that endless debates will be held over the removal of or disabling access to protected content. The Directive states that the OCSSPs must put in place an effective and expeditious complaint and redress mechanism with human review. It remains unclear how efficient these mechanisms will be in practice, as a case-by-base assessment by a human being does not appear to be the most efficient, considering the probably huge amounts of requests. Moreover, the Directive continues to state that such mechanisms shall not deprive users of the legal protection afforded by national law, without prejudice to the rights of users to have recourse to efficient judicial remedies. In particular, Member States shall ensure that users have access to a court or another relevant judicial authority to assert the use of an exception or limitation to copyright and related rights. This out-of-court redress mechanism is also nothing new as Member States are already familiar with mediation and arbitration proceedings.
The Directive seems to create a lot of uncertainty for both right holders and OCSSPs. It only gives little guidance on what OCSSPs are expected to do and it is impossible to predict how right holders will use their 'new' position towards the OCSSPs. Consequently, many debate and interpretation of the provisions of Article 17 of the Directive is expected . The Commission shall now first in cooperation with the member states organize stakeholder dialogues and issue guidance on the implementation of article 17. There will be a continuing discussion about what 'reasonable' internet intermediaries can 'reasonably' be expected to do: pay (share advertising income or other income) and/or take preventive or repressive action regarding copyright infringement, while balancing fundamental rights, especially freedom of speech. Many critics say Article 17 is a very slippery slope leading to censorship and surveillance. An even more important discussion about hate speech, fake news and other kind of 'undesirable' information will be added to the former. Stakeholders wanting to raise their voice should do now.