On 13 February 2019 the Commission, the European Parliament and the Council finally agreed the text of the long-awaited draft Copyright Directive (COM(2016)593) (“Directive“). The next step will be a vote in the EU Parliament on the agreed text on 26 March 2019. Ahead of that decisive vote, DSM Watch takes a deeper dive into the agreed language of the Directive, starting with the much debated Article 13 (This analysis is based upon the text which was presented and provisionally agreed by the Council on 20 February 2019).
What is Article 13?
The Commission’s stated aim of Article 13 is to “reinforce the position of creators and right holders to negotiate [a licence] and get remunerated for the use of their content by certain user-uploaded content services”.
When an online content-sharing service provider gives access to copyright-protected content uploaded by its users, Article 13 provides that it performs an act of communication to the public or an act of making available to the public and those acts must be authorised by the rightholder (e.g. by concluding a licensing agreement). This has been a controversial and heavily debated aspect of the Directive because it makes some online services primarily liable for copyright infringement in relation to the acts of their users.
While the online content sharing services are urged to conclude licensing agreements with right holders or get their authorisation, it is expressly stated that rightholders are free to refuse to grant authorisation. This aspect of Article 13 has been criticised for curtailing the freedom of the internet because if rightholders do not grant a licence for specific works infringement liability cannot be avoided unless the content sharing service can meet the 4-step criteria set out below.
Where authorisation has also been obtained it will cover the acts carried out by a service’s users when they are “not acting on a commercial basis” or when their “activity does not generate significant revenues” It is not clear what “significant” revenues means in this context. Where is the threshold? Would small influencers generating only a couple of hundred Euros per month be covered, or only those who make a living from their activity?
Who is caught?
Article 2(5) defines an “online content sharing service provider” as an online service “whose main or one of the main purposes is to store and give the public access to a large amount of copyright protected works […] uploaded by its users which it organises and promotes for profit-making purposes.” For ease, we shall refer to such a service as a “content sharing service“.
Recital 37b states that the assessment of what amounts to a “large amount” must be made on a case-by-case basis, depending on a non-exhaustive list of criteria (e.g. audience size and amount of copyright-protected files uploaded). Explicitly excluded from the definition are not-for-profit online encyclopedias (e.g. Wikipedia); not-for-profit educational and scientific repositories; open-source software developing and sharing platforms (e.g. GitHub), ISPs, online marketplaces, B2B and personal cloud services. However, discussion forums (hosting comments) or dating platforms (hosting pictures) could arguably be covered by the definition.
Since there is no threshold, it could be argued that any profits made by the platform operator could be sufficient to make it fall within the scope of the definition regardless of the amount. A small platform operated by one person which allows its users to share their pictures and which generates through advertising barely enough revenues to be self-sufficient is treated much the same as the most popular platforms out there. To deal with this, the Directive includes a lighter regime for start-ups (see further below).
Unlicensed Content: the four-step limitation of liability regime Continue Reading