EMPOWERING CREATORS AND PROTECTING USERS
EMPOWERING CREATORS AND PROTECTING USERS
The final version
Here's an overview of the final text the European Parliament approved on March 26.
Big wins for users in article 13/17: did you know that....
... you’ll be able to upload that video with a Lady Gaga track you made without fear because platforms will be responsible for the use of copyright protected material in content posted by users. Your uploads will be covered by the license the platform negotiates with rights holders.
...If you think it was unfair that the parody you posted was taken down by YouTube or Facebook, you’ll have the right to at least know why because platforms will have to provide ways for users and rights holders to appeal decisions.
Fairer deals for creators, because...
A wider variety of artists will be able to monetize the use of their work because platforms like YouTube will have to negotiate licensing deals with authors and creators. Today, a platform like YouTube can pretty much do whatever it wants.
Amateur creators, critics, mash-up artists and cover musicians, rejoice!
- Your works that include copyrighted material are covered by the licenses the platforms must negotiate with rights holders.
- Platforms must provide clear terms and fair, fast arbitration of disputes.
- Exceptions for parody, criticism, citation, etc. are explicitly protected.
OUR PARAGRAPH-BY-PARAGRAPH EXPLANATION
TITLE:
Use of protected content by online content-sharing service providers
The title serves as a description of what Article 13 covers. As defined in article 2.6.*
In practice, it’s about for-profit platforms such as YouTube, Facebook, Vimeo, Soundcloud or Dailymotion that rely on user-posted content. The definition specifically excludes non-profit platforms such as Wikipedia or market places like Amazon as well as open source platforms and internet service providers, cloud services such as DropBox or GoogleDrive.
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.
As it is a directive, this piece of legislation will be transposed into national law by the Member States. This section clarifies that certain platforms that rely on user-uploaded content are not just hosts like OVH or AWS (Amazon Web Services), but that they are “performing an act of communication to the public or an act of making available to the public” and this is why it reaffirms that they are required to negotiate license agreements with rights holders.
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.
This is huge for ordinary users and casual uploaders: Their use of any copyrighted material is covered by the deals negotiated between platforms and creators, as long as they are not pulling in lots of cash from their activities.
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.
These platforms cannot benefit from the safe harbour provided by article 14 of the e-commerce directive as they cannot be considered as mere technical intermediaries who are not liable for the copyrighted content uploaded by users.
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).
This section holds platforms accountable in the absence of a deal with the rightsholder EXCEPT IF the services have proven they have made a real effort to get a licence AND stopped users from accessing unauthorized content. If a copyright holder has asked them to remove something, and provided enough information like content fingerprints, they have to take the content down and keep it down.
In practice, it means that if a rightsholder decides that it doesn't want to negotiate a license with the platform, then the two parties have to work together to make sure that those works are not made available on the site.
There is no obligation to put filters in place. Services need to be able to identify specific copyright protected content for which rightsholders provide relevant information. They cannot use filters randomly to stop content from being posted.
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.
This makes clear that, in any case, the obligations of online content sharing service providers will be proportional to their size, means and business models. And the type of content users of the service upload.
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/EC20, 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.
European start-ups that meet strict criteria benefit from a smart and special exemption during their first three years, allowing them to grow with legal certainty. Like any other for-profit content platform which enables users to upload copyrighted material (i.e.: article 2.6), start-ups have to “make best efforts” to get licences from rightsholders and take down unlicensed material notified by rightsholders. However, no stay-down obligation is required for those start-ups.
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.
This debunks a big part of the lobbying campaign against Article 13: MEMES WILL NOT BE KILLED. Nor will Gifs. Period. Freedom of speech is safeguarded and protected from automatic blocking; you’ll still be able to have your fun online.
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.
Here the text clarifies that service providers do not need to implement Big Brother-style monitoring of all content. Even more important to creators and users, platforms have to be transparent about their rules and practices regarding cooperating and licensing.
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 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.
Ordinary users are again the focus here. No blocking is allowed when uploads of content fall under the scope of an exception of copyright. In order to do so, this section clearly spells out various protections including impartial, out-of-court dispute settlement systems, clear terms of service and respect for personal data under the GDPR rules.
10.
As of …[date of entry into force of this Directive] 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.
This last section calls on member states and the Commission to create the conditions for genuine cooperation between the online services and the rightsholders or those who represent them. The bitterness of the lobbying campaigns will have to give way to harmony for the good of the average user if this is to work well.
*The article 2.6 definition: ‘online content-sharing service provider’ means 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 organises and promotes for profitmaking purposes. Providers of services, such as not-for-profit online encyclopedias, not-for-profit educational and scientific repositories, open source software-developing and sharing platforms, electronic communication service providers as defined in Directive (EU) 2018/1972, online marketplaces, business-to-business cloud services and cloud services that allow users to upload content for their own use, are not ‘online content-sharing service providers’ within the meaning of this Directive.
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