EU Copyright Implementation

Art. 17 - Use of protected content by online content-sharing service providers

CJEU hearing: Not even the supporters of Article 17 agree on how it should work

(original article)

Author: Paul Keller

On Tuesday, November 10, the Court of Justice of the European Union heard case C-401/19. This case is a request by the Polish government to annul the filtering obligation contained in Article 17 of the DSM directive on the grounds that it will lead to censorship and will limit the freedom of expression and the freedom to receive and impart information guaranteed in the EU charter of fundamental rights.

The defendants in this case are the European Parliament and the Council of the European Union. In addition the European Commission and the governments of France and Spain intervened in the case on the side of the defendants.

Even for astute followers of the discussions around the implementation of Article 17, the hearing contained a number of surprises. While several Member States have been soldiering on with their national implementation proposals with little regard for the fundamental rights implications of Article 17, the hearing showed that the Court is taking Poland’s complaint very seriously and that the compliance of the contested provisions of Article 17 with the Charter is far from evident. Frequent reference was made during the hearing to the recent opinion of Advocate General Saugmandsgaard Øe in the YouTube and Cyando cases, which is highly critical of extensive obligations on platforms to police the copyright infringements of their users. 

On the face of it the case is about Poland’s request to annul Articles 17(4)b and c of the DSM directive. Poland argued its case, which essentially rests on the observation that while not explicitly mandating them, Articles 17(4)b and c effectively require platforms to implement upload filters because there are no other effective means to comply with the obligations contained therein. Poland argues that this will lead to censorship and will limit the freedom of information of the users of online platforms. 

According to Poland the key problem with the directive is the move away from active participation of rightholders (in the form of Notice and Takedown) and handing the problem of removing infringing uploads over to platforms who will have to develop private enforcement systems to avoid liability for copyright infringement. Because they are not facing any comparable risk when they are limiting user rights by blocking access to legal content, this creates strong incentives for over-blocking. This in turn will result in censorship and violation of the fundamental rights to freedom of expression and information. Consequently, the offending parts of Article 17 should be annulled by the court.

All other parties intervening in the case objected to this line of argument and stated that in their view Article 17 does not violate any fundamental rights, but they presented strikingly contradictory interpretations of what Article 17 actually requires of platforms. There are two distinct lines of argument: The Commission, the Council and the European Parliament argued that that Article 17 contains enough internal safeguards to prevent users’ fundamental rights from being unduly limited. On the other hand France and Spain argued that some limitations of fundamental freedoms are justified by the objective that Article 17 seeks to achieve.

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Category: Member state legislations, Comments on implementation
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DSM directive implementation update: six months to go and no end in sight

(original article)

Author: Paul Keller

According to Article 26 of the Copyright in the Digital Single Market Directive, Member States have until the 7th of June 2021 to implement the provisions of the directive into their national laws. This is in a little bit more than six months from now, so it is time to take stock of the implementation status in various Member States.

So far not a single EU Member State has fully implemented the provisions of the Directive and only two Member States have implemented parts of it (In 2019 France implemented the new press publishers’ right and in June of this year Hungary implemented the exception for online educational use). In most of the EU Member States implementing legislation still needs to be introduced into parliament. In the meantime, the European Commission is still working on the implementation guidance for Article 17 that it is required to publish, and the Polish government’s request to annul parts of Article 17 is still under deliberation in the Court of Justice of the European Union (the Advocate General will publish its opinion on the 22nd of April 2021 less than two months before the end of the implementation deadline). All in all it looks increasingly unlikely that most Member States will implement the Directive in time. So let’s take a more detailed look at where the implementation process stands in key Member States.

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Category: Comments on implementation
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Use of protected content by online content-sharing service providers

CHAPTER 2

Certain uses of protected content by online services

Article 17

1. Member States shall provide that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public for the purposes of this Directive when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.

An online content-sharing service provider shall therefore obtain an authorisation from the rightholders referred to in Article 3(1) and (2) of Directive 2001/29/EC, for instance by concluding a licensing agreement, in order to communicate to the public or make available to the public works or other subject matter.

2. Member States shall provide that, where an online content-sharing service provider obtains an authorisation, for instance by concluding a licensing agreement, that authorisation shall also cover acts carried out by users of the services falling within the scope of Article 3 of Directive 2001/29/EC when they are not acting on a commercial basis or where their activity does not generate significant revenues.

3. When an online content-sharing service provider performs an act of communication to the public or an act of making available to the public under the conditions laid down in this Directive, the limitation of liability established in Article 14(1) of Directive 2000/31/EC shall not apply to the situations covered by this Article.

The first subparagraph of this paragraph shall not affect the possible application of Article 14(1) of Directive 2000/31/EC to those service providers for purposes falling outside the scope of this Directive.

4. If no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless the service providers demonstrate that they have:

(a) made best efforts to obtain an authorisation, and

(b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event

(c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).

5. In determining whether the service provider has complied with its obligations under paragraph 4, and in light of the principle of proportionality, the following elements, among others, shall be taken into account:

(a) the type, the audience and the size of the service and the type of works or other subject matter uploaded by the users of the service; and

(b) the availability of suitable and effective means and their cost for service providers.

6. Member States shall provide that, in respect of new online content-sharing service providers the services of which have been available to the public in the Union for less than three years and which have an annual turnover below EUR 10 million, calculated in accordance with Commission Recommendation 2003/361/EC [1]Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36)., the conditions under the liability regime set out in paragraph 4 are limited to compliance with point (a) of paragraph 4 and to acting expeditiously, upon receiving a sufficiently substantiated notice, to disable access to the notified works or other subject matter or to remove those works or other subject matter from their websites.

Where the average number of monthly unique visitors of such service providers exceeds 5 million, calculated on the basis of the previous calendar year, they shall also demonstrate that they have made best efforts to prevent further uploads of the notified works and other subject matter for which the rightholders have provided relevant and necessary information.

7. The cooperation between online content-sharing service providers and rightholders shall not result in the prevention of the availability of works or other subject matter uploaded by users, which do not infringe copyright and related rights, including where such works or other subject matter are covered by an exception or limitation.

Member States shall ensure that users in each Member State are able to rely on any of the following existing exceptions or limitations when uploading and making available content generated by users on online content-sharing services:

(a) quotation, criticism, review;

(b) use for the purpose of caricature, parody or pastiche.

8. The application of this Article shall not lead to any general monitoring obligation.

Member States shall provide that online content-sharing service providers provide rightholders, at their request, with adequate information on the functioning of their practices with regard to the cooperation referred to in paragraph 4 and, where licensing agreements are concluded between service providers and rightholders, information on the use of content covered by the agreements.

9. Member States shall provide that online content-sharing service providers put in place an effective and expeditious complaint and redress mechanism that is available to users of their services in the event of disputes over the disabling of access to, or the removal of, works or other subject matter uploaded by them.

Where rightholders request to have access to their specific works or other subject matter disabled or to have those works or other subject matter removed, they shall duly justify the reasons for their requests. Complaints submitted under the mechanism provided for in the first subparagraph shall be processed without undue delay, and decisions to disable access to or remove uploaded content shall be subject to human review. Member States shall also ensure that out-of-court redress mechanisms are available for the settlement of disputes. Such mechanisms shall enable disputes to be settled impartially and shall not deprive the user 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 Directive shall in no way affect legitimate uses, such as uses under exceptions or limitations provided for in Union law, and shall not lead to any identification of individual users nor to the processing of personal data, except in accordance with Directive 2002/58/EC and Regulation (EU) 2016/679.

Online content-sharing service providers shall inform their users in their terms and conditions that they can use works and other subject matter under exceptions or limitations to copyright and related rights provided for in Union law.

10. As of 6 June 2019 the Commission, in cooperation with the Member States, shall organise stakeholder dialogues to discuss best practices for cooperation between online content-sharing service providers and rightholders. The Commission shall, in consultation with online content-sharing service providers, rightholders, users’ organisations and other relevant stakeholders, and taking into account the results of the stakeholder dialogues, issue guidance on the application of this Article, in particular regarding the cooperation referred to in paragraph 4. When discussing best practices, special account shall be taken, among other things, of the need to balance fundamental rights and of the use of exceptions and limitations. For the purpose of the stakeholder dialogues, users’ organisations shall have access to adequate information from online content-sharing service providers on the functioning of their practices with regard to paragraph 4.

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↑1 Commission Recommendation of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).
Category: EU-Copyright-Directive
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