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Platforms that host content uploaded by users are currently in the headlights of the proposed Directive on Copyright in the Single Digital Market. Ever since the European Commission (“EC”) proposed the reform in 2016, the ups and downs of the legislative process have been complex, leading to apparent dead ends at times, particularly due to the now famous and highly controversial #Article13, widely debated on social media and by the public, which would put new liability on platforms.
Under #Article13—with various exceptions and nuances depending on the version—platforms that share content uploaded by users must obtain a license from copyright holders to host and provide access to content protected by intellectual property rights, an activity classed as public communication. If platforms do not obtain a license, the appropriate steps must be taken to prevent the content from being available on the platform. That would require the use of an advanced content filtering system, which has sparked controversy due to the potential impact on freedom of expression and questionable compatibility with the liability exclusions in the Electronic Commerce Directive (“ECD”), particularly the ban on establishing general supervision obligations.
The council approved the directive’s draft form on May 25, while the parliament did so on September 12 following an unsuccessful vote in July. The informal interinstitutional negotiation under the auspices of the EC, the so-called “Trilogue”, began on October 2, to reach an agreement on a final text that is acceptable to both the parliament and the council. However, the negotiations came close to collapsing on January 18, when the council could not agree on a new negotiating mandate, leading to the cancellation of the latest session scheduled for the Trilogue.
The most recent development was the agreement France and Germany reached on the 4th of this month in the council to agree a new text. The Romanian presidency of the council has prepared a new negotiating mandate that will be put to a vote in the Coreper meeting scheduled for February 8. If it is voted for, as is expected, the Trilogue sessions are expected to resume the following week, although with certain pressure due to the looming European elections.
It is by no means given that the parliament will accept a new negotiating mandate by the council. The council’s new proposal is that the new obligations not be enforceable on companies that meet all three of the following conditions: (i) turnover of less than €10 million; (ii) have been operating for less than three years; and (iii) have fewer than five million unique visitors every month. Companies that meet those conditions will only have to remove content when they receive a notification. It is difficult to balance the approaches taken by France and Germany: the first does not want to limit the scope of the directive, while the second advocates excluding small and medium-sized enterprises entirely.
Exemption of liability for hosting under article 14 ECD will not apply to platforms in relation to copyright infringement liability, but that exemption may apply to another type of illicit content, which would breach the horizontal scope of the ECD.
Exemption from liability is given to platforms that show they have acted diligently to obtain a license, to prevent the availability of unlicensed content on the platform and to ensure that removed content does not reappear.
Finally, users may upload content that includes excerpts of protected works for the purpose of reference, critique, review, caricature, parody or pastiche (but no longer for “illustration”). In practice, that means that some exceptions that Directive 2001/29 made optional to Member States will become mandatory (for users only, not for platforms).
The debate is ongoing, and both the negotiation in the Trilogue and the subsequent vote in parliament remain shrouded in uncertainty. Watch this blog for ongoing developments.
Author: Miquel Peguera
This post is also available in: Español