TITLE: Use of protected content by online content sharing service providers.

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 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 obtain an authorization from the right holders referred to in Article 3 (1) (2) of Directive 2001/29/EC in order to communicate or make available to the public works or other subject-matter. Where no such authorisation has been obtained, the service provider shall prevent the availability on its service of those works and other subject-matter, including through the application of measures referred to in paragraph 4. This subparagraph shall apply without prejudice to exceptions and limitations provided for in Union law. Member States shall provide that when an authorisation has been obtained, including via a licensing agreement, by an online content sharing service provider, this authorisation shall also cover acts of uploading by the users of the service falling within Article 3 of Directive 2001/29/EC when they are not acting on a commercial basis. [Last two sentences of COM proposal were moved to Council’s paragraphs 5 and 6 respectively]

2.

[Paragraph 2 of the COM proposal was moved to new paragraph 7 of Council’s text]

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, it shall not be eligible for the exemption of liability provided for in Article 14 of Directive 2000/31/EC for unauthorised acts of communication to the public and making available to the public, without prejudice to the possible application of Article 14 of Directive 2000/31/EC to those services for purposes other than copyright relevant acts.

4.

Introductory part

In the absence of the authorisation referred to in the second subparagraph of paragraph 1, Member States shall provide that an online content sharing service provider shall not be liable for acts of
communication to the public or making available to the public within the meaning of this Article when:
(a) it demonstrates that it has made best efforts to prevent the availability of specific works or other subject matter by implementing effective and proportionate measures, in accordance with paragraph 5, to prevent the availability on its services of the specific works or other subject matter identified by rightholders and for which the rightholders have provided the service with relevant and necessary information for the application of these measures; and
(b) upon notification by rightholders of works or other subject matter, it has acted expeditiously to remove or disable access to these works or other subject-matter and it demonstrates that it has made its best efforts to prevent their future availability through the measures referred to in point (a).

5.

Introductory part

The measures referred to in point (a) of paragraph 4 shall be effective and proportionate, taking into account, among other factors:
(a) the nature and size of the services, in particular whether they are provided by a microenterprise or a small-sized enterprise within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC, and their audience;
(b) the amount and the type of works or other subject matter uploaded by the users of the services;
(c) the availability and costs of the measures as well as their effectiveness in light of technological developments in line with the industry best practice referred to in paragraph 8.

6.

Member States shall ensure that online content sharing service providers and right holders cooperate with each other in a diligent manner to ensure the effective functioning of the measures referred to in point (a) of paragraph 4 over time. Online content sharing service providers shall provide right holders, at their request, with adequate information on the deployment and functioning of these measures to allow the assessment of their effectiveness, in particular information on the type of measures used and, where licensing agreements are concluded between service providers and rightholders, information on the use of content covered by the agreements.

7.

Member States shall ensure that the measures referred to in paragraph 4 are implemented by the online content sharing service provider without prejudice to the possibility for their users to benefit from exceptions or limitations to copyright. For that purpose, the service providers shall put in place a complaint and redress mechanism that is available to users of the service in case of disputes over the application of the measures to their content. Complaints submitted under this mechanism shall be processed by the online content sharing service provider in cooperation with relevant right holders within a reasonable period of time. Right holders shall duly justify the reasons for their requests to remove or block access to their specific works or other subject matter. Member States shall endeavour to put in place independent bodies to assess complaints related to the application of the measures. [Paragraph 2 of the COM proposal, amended]

8.

The Commission and the Member States shall encourage stakeholder dialogues to define best practices for the measures referred to in point (a) of paragraph 4. Member States shall also endeavor to establish mechanisms to facilitate the assessment of the effectiveness and proportionality of these measures and provide the Commission regularly with information on those mechanisms. The Commission shall, in consultation with online content sharing service providers, rightholders and other relevant stakeholders and taking into account the results of the stakeholder dialogues and the national mechanisms, issue guidance on the application of the measures referred to in point (a) of paragraph 4. [Paragraph 3 of the COM proposal, reworded]

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