[The content of this article is now out of date; you can see our latest posts on how the Copyright Directive has affected our Intellectual Property Law at this post (first part) and in this post (second part)].
In today's post, we will examine the “controversial” Article 17 of Directive 2019/790 of the European Parliament and of the Council of April 17, 2019, on copyright and related rights in the Digital Single Market, the so-called “Copyright Directive”, from the perspective of the guidelines published by the European Commission on June 3, 2021, regarding its transposition. At the time, when this Directive was still pending approval, we published two articles on the subject, which you can view at the following links: https://www.bamboo.legal/propuesta-de-directiva-sobre-derechos-de-autor/ y https://www.bamboo.legal/propuesta-de-directiva-sobre-derechos-de-autor-2/.
Article 17 of the Copyright Directive revolves around the responsibility of platforms. with regard to content uploaded by its users, when such content is protected by intellectual property rights.
According to the definition in Article 2.6 of the Directive, we see that this article will apply to those platforms that cumulatively meet the following requirements:
- It is an information society service, as defined in Article 1(1)(b) of the Directive (EU) 2015/15357;
- Its main purpose or one of its main purposes is store and make available to the public to one large number of protected works for copyright or other protected performances uploaded by their users;
- Organize and promote the service with for profit.
Probably the most representative example is YouTube. On the other hand, platforms that do not seek to make a profit (e.g., non-profit encyclopedias such as Wikipedia) are excluded from this regulation.
With regard to the requirement to organize and promote the service for profit, recital 64 of the Directive emphasizes that this may be direct or indirect. As the Commission explains, the profit motive must be linked to the benefits that the service derives from organizing and promoting the content uploaded by users in a way that attracts a larger audience. For example, when places advertising on content uploaded by users, it is considered that economic gain is being pursued. However, the simple fact of receiving a fee from users to cover the platform's operating costs is not an indicator that such purposes exist.
According to Article 17.4, these providers are those who perform an act of communication to the public in the form of making available when each of its users uploads content to the platform. And that determines that it will be the platform that must obtain authorization from the owners whose content is protected by copyright.
In its text, the Directive does not provide many clues as to how platforms will be able or required to obtain such authorization. According to the Commission's guidelines, Member States will be responsible for facilitating mechanisms for rights holders and platforms to reach agreements, establishing different authorization models. One way to do this will be through collective licenses. Thus, for example, in the music industry, record labels, publishers, and collective management organizations will be able to negotiate collective agreements with YouTube and directly authorize the exploitation of the rights of their artists and/or authors.
This authorization will also have to cover acts by users who are not acting for commercial purposes and acts by users who do not generate significant profits. As the Commission emphasizes, this will ensure legal certainty for as many users as possible when they upload copyright-protected content.
However, the key issue is that, in the absence of such authorization, the platforms shall be liable for unauthorized acts of communication to the public, including the provision of content protected by copyright or related rights, unless they can demonstrate that all of the following conditions are met cumulatively:
- Have they done the greater efforts for obtaining authorization;
- Have made every effort, in accordance with strict professional standards of diligence, for ensuring unavailability of works and other specific services for which the rights holders have provided them with the relevant and necessary information;
- Have acted with due diligence upon receiving sufficiently substantiated notifications from rights holders, to disable access to your works.
The element of the “greater efforts” is not defined by the Directive. According to the Commission, it is a autonomous concept of European Union law, which requires uniform interpretation. It will be assessed on a case-by-case basis, following various parameters, such as the size and audience of the service, the different types of content that the platform makes available to the public, as well as the practices applied in the market. Thus, for example, one way to demonstrate greater efforts is to proactively negotiate with collective management organizations to reach collective agreements.
This assessment must always be interpreted under the principle of proportionality, thereby protecting the freedom of platforms to conduct business. Thus, for example, the latter should not be expected to proactively seek out rights holders who are not readily identifiable.
The second condition applies in cases where no agreement has been reached despite best efforts. Platforms must therefore ensure that works and other services are blocked when rights holders have provided all necessary and relevant information. To this end, they may use various technological tools, such as watermaking, hashing, or use of metadata. The Commission emphasizes that platforms should not be expected to use the most expensive or sophisticated tools if this would be disproportionate in the specific case.
Within this framework, rights holders may choose to identify certain content whose unauthorized availability on the Internet could cause them significant financial damage and invalidate it. This prior assignment by rights holders may be a factor to consider when assessing whether platforms have made their best efforts to ensure that such content is unavailable.
The content notification and removal system (“notice and takedown”) will occur when, despite having made every effort to ensure that the works are unavailable, they are still available. In this case, the platforms must act promptly upon receiving notifications.“sufficiently justified” by the owners to remove content. However, their obligation does not end there; they must also make every effort to prevent this content from being uploaded again in the future.
This liability regime will be more limited for platforms that have been available to the public for less than three years and have a turnover of less than €10,000,000. In this case, they will only have to demonstrate that they have made every effort to obtain authorization from the rights holders, as well as that they have acted expeditiously upon receiving a sufficiently substantiated notification to disable access to works or to remove them from the platform.
On the other hand, section 7 of article 17 “frees” platforms from the obligation to obtain authorization when the user uploading the content is covered by any of the following limits: quote, critique, review, caricature, parody, or pastiche. These are limits and exceptions that Member States are required to include in their legislation. According to the Commission, they will have to review their legislation to see if it includes these exceptions. for the digital environment.
Finally, in accordance with Article 17.9, platforms must have a complaint and appeal mechanism agile and effective mechanism available to users of the platform in case they disagree with the blocking of their content. This mechanism will have to be supervised by a natural person who will determine whether the use of this content is legitimate or not and whether it should be restored. Likewise, it is envisaged that Member States will have to ensure the existence of extrajudicial mechanisms for the resolution of these disputes.
Article 17, as well as the rest of the Copyright Directive, pending transposition into Spanish law. And although the Commission's guidelines are not legally binding, they will play a decisive role in ensuring a uniform interpretation of this article in all Member States.
[Article written by Marilena Kanatá]
