On March 26, 2019, the EU Parliament passed Article 17 (formerly Article 13) of the EU Directive on Copyright in the Digital Single Market, entitled “Use of protected content by online content-sharing service providers” (EU Directive 2019/790, Art. 17), which will require large, online content-sharing service providers like YouTube and Facebook to actively screen and monitor user-uploaded content for copyright infringing material.
Article 17 represents a major shift in EU copyright policy. Current copyright law among EU member states mirrors copyright law in the US: internet service providers (ISPs) are granted a broad safe harbor from copyright infringement liability and can only be held liable if they fail to follow the mandatory “notice and take down” procedure triggered by user reports of the presence of copyright infringing material. (Section 512(c) of the Digital Millennium Copyright Act provides a safe harbor for ISPs who meet due diligence requirements to take down infringing material if notified of its presence.)
By contrast, Article 17 will place full responsibility on online content-sharing service providers to remove and block user-uploaded material that infringes EU copyright holders’ rights. The Directive explains that content-sharing service providers are performing an act of public communication when they provide public access to services for uploading and viewing copyrighted content, which necessarily infringes an owner’s exclusive right to copy and publicly perform their work. (¶ 64; Art. 17(1)). To comply with Article 17, therefore, online content-sharing service providers will need to create and implement technical mechanisms that screen user-uploaded content prior to publication and filter out infringing material already published on the provider website. The new directive does not detract from user liability, and users can still be sued individually for copyright infringement.
What is an EU Directive?
EU directives do not, by themselves, create new law. Directives instruct EU member states on policy changes supported by the EU parliament and provide a basic legal framework to aid member states in promulgating national laws in accordance with those policies. No member state has yet translated Article 17 of the Directive into national law.
Who will be covered? Defining “online content-sharing service providers”
Under Article 17, a qualified online content-sharing service provider is any provider who “stores and gives [broad audiences] access to a large amount of copyright-protected content” and whose main purpose for providing those services is to obtain profit from user activity generated by user-content interactions. (¶ 62).
Determining whether an online content-sharing service provider fits the above description should be done “on a case-by-case basis.” (¶ 63). Relevant factors include the size of the “audience[s] of the service and the number of files of copyright-protected content [that are] uploaded” by users of the provider’s service. (¶63). Certain entities are explicitly exempt from liability including cloud storage services, open source software development platforms and e-commerce marketplaces. (¶ 62). Service provider liability is also limited where copyrighted works are shared for research, education, data mining and cultural heritage collection. (¶ 5).
Policy Goals of Article 17: Value-sharing and Technological Innovation
Many large content-sharing service providers like Youtube and Facebook derive significant profit from targeted advertising made possible by data generated by user activity, activity driven primarily by user-uploaded content. Data on what users upload, view, share and like create internal individual user profiles which platform service providers aggregate and use to match paid-for advertisements for products and services with the users mostly likely to purchase them. Article 17 corrects the present imbalance in value-sharing between providers and rightsholders whose works are being indirectly exploited for profit. (¶ 61).
In addition to filling the ‘value gap,’ Article 17 will also force platforms to create effective content recognition technologies that can distinguish between content that infringes upon a current copyright and content that does not. The Directive recommends that content-sharing service providers create and implement filters to monitor their websites and user uploads. It also makes clear, however, that providers should not implement measures that “go beyond what is necessary to achieve the objective of avoiding and discontinuing the availability of unauthorized works” on their platforms. (¶ 66).
Effect on Copyright Holders
Under the Directive, all copyright holders – EU and non-EU alike – will be covered by, or will have the opportunity to enter into, collective licensing agreements with qualified content-sharing service providers. (Art. 12). Specifically, EU member states will be responsible for promulgating national laws that “adapt certain . . . measures to facilitate certain licensing practices” by collective licensing organizations for or on behalf of copyright holders. (¶¶ 3, 44). Such measures could include extended collective licensing agreements, legal mandates and presumptions of representation and would apply in “well-defined areas of use” that do not undercut the commercial value of the content covered. (¶¶ 44, 47).
The Directive also provides rightsholders with a cause of action if a service provider fails to notify the copyright holder that infringing content was uploaded to its site, or if it fails to perform its due diligence and act expeditiously upon notification of an infringement. (Art. 17(4)).
Potential Effects on User Experience
There is widespread concern that by creating such broad service provider liability Article 17 will result in a ‘filtered internet’ that inhibits user freedom to upload and share derivative works like memes, GIFs, remixes and parodies. It is likely that, if implemented, the current method of instant publishing, sharing and streaming will change dramatically, though how and to what degree will depend on the service provider’s content ID program and whether the provider chooses to enter into collective licensing agreements. The Article also provides users with a cause of action to challenge a service provider’s rejection of their content or a content take-down, or the provider’s method of content ID.
There are also many in Europe and elsewhere who strongly oppose Article 17 on the basis that the practical effect of the Directive will be over-censorship and the proliferation of technologies that allow companies – and governments –to strategically filter content ‘out of the internet’.
The EU Copyright Directive raises a lot of questions. For example, it is unclear if and how individual member states will be able to efficiently facilitate collective licensing practices among copyright owners, collective licensing and management organizations and online content-sharing service providers – and what those licensing practices might be. It also remains to be seen how EU member states will be able to adequately regulate licensing organizations and monitor qualified service providers for compliance with local laws. Finally, it is unclear whether and how local licensing agreements would apply in the inevitable event of a cross-border use of copyright content.
While the policy goals of the Directive and Article 13 are laudable, the manner in which those goals can be reached is unknown. On June 6, 2019, the European Commission began organizing “stakeholder dialogues” in cooperation with the EU member states to discuss “best practices for cooperation” between copyright holders and qualified online content-sharing service providers. (Art. 17(10)). Stay tuned for more updates on EU copyright law and the promulgation of national laws by EU member states!
Directive 2019/790, of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC, 2019 O.J. (L 170), 92–125. The most recent version of the Directive can be found at https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2019.170.01.0092.01.ENG