On 4 June 2021, the European Commission issued its guidance to EU Member States on Article 17 of Directive 2019/790 on Copyright in the Digital Single Market (the “DSM Directive”). The deadline to transpose the DSM Directive (adopted in May 2019) into national law was 7 June 2021, just a few days after the publication of the guidance.
Article 17 of the DSM Directive is one of the most controversial articles of the DSM Directive. It provides that online content-sharing platforms such as YouTube perform an act of communication to the public when they give that public access to copyright-protected works uploaded by their users. As a result, these platforms have to obtain an authorisation from the rightsholders in order to communicate such content via their website. If no authorisation is granted, they can be liable for copyright infringements unless certain conditions are fulfilled, including proof that they made their best efforts to ensure the unavailability of specific content for which the rightsholders have provided them with the necessary information.
The Commission’s guidance aims to ensure a “correct and coherent transposition of Article 17 across the Member States”. The guidance is the result of discussion and negotiations between the Member States and stakeholders. The guidance includes further precisions on the definition of online content-sharing services providers, authorisation models with rightsholders, liability mechanisms, best efforts, etc. The published guidance clearly departs content-wise from the draft that was submitted by the Commission last year.
A few clarifications provided by the guidance deserve to be highlighted:
• The guidance clarifies that Article 17 is a lex specialis to Directive 2001/29/EC of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (“InfoSoc Directive”). The guidance states that “Article 17 does not affect the concept of communication to the public or of making content available to the public elsewhere under Union law, nor does it affect the possible application of Article 3(1) and (2) of Directive 2001/29/EC to other service providers using copyright-protected content”. This clarification was long awaited as the status of Article 17 compared to the InfoSoc Directive was unsure. Furthermore, Article 17 does not introduce a specific sui generis right of communication to the public.
• The Commission also confirmed that Member States cannot develop their own notion of “online content-sharing service providers” and cannot set quantitative thresholds in connection with “large amount” of copyright-protected works in the definition of online content-sharing service providers. Also, the concept of “best efforts” is an autonomous concept of European law that must be applied uniformly.
• The Commission’s guidance also recommends limiting automated ex ante blocking of content identified by rightsholders to “manifestly infringing uploads”.
Regarding the transposition of the DSM Directive in Belgium, the Council of Ministers approved a draft law on Copyright and Related Rights in the Digital Single Market on 4 June 2021. With respect to the transposition of Article 17 of the DSM Directive, the text of the draft law remains fairly close to the text of the Directive.
In addition to the transposition of the DSM Directive, the draft law also provides for a new type of summary proceedings, the objective of which is to put a swift end to large-scale copyright infringements committed online. The draft law also provides for the creation of a new and specialised service within the FPS Economy: the “Service for the fight against infringements of copyright and related rights on the Internet”. We will of course keep you updated on the further developments in this regard.
Please contact Karel Janssens for further information about this topic and/or for general legal advice relating to online platforms.