In today's post, we continue with the topic of copyright and Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market (hereinafter referred to as the Directive). This time, we will discuss the rules governing the liability of online content sharing service providers for copyright infringements. These issues are regulated in Article 17 of the Directive.

The introduction of this provision generated by far the most controversy. Criticism of Article 17 was voiced by both legal experts and entities affected by the regulations. This provision even became the subject of a complaint filed by Poland with the Court of Justice of the European Union. The complainants cited a violation of the right to freedom of expression and information. The reason for the complaint was the fear that internet platforms would excessively censor content appearing online in order to avoid potential liability.

Despite this controversy, legal literature emphasizes that Article 17 of the Directive "revolutionarily changes the existing rules of copyright protection for the exploitation of works online."* The introduced regulation concerns the provision by online content sharing service providers (hereinafter referred to as DUUTO) of access to copyrighted works or other protected subject matter uploaded by users**. By providing users with public access to materials uploaded by other users, DUUTO is making these materials publicly available or making them publicly available. To use any work in this manner, DUUTO must obtain permission from the right holders, including authors, publishers, and producers. This may occur, for example, under a license agreement.

The introduced regulation therefore requires entities that store and provide public access to significant amounts of works posted by their users (e.g., YouTube, Vimeo, Facebook, Twitter, etc.) to take steps to prevent copyright infringement. Considering the current liability of intermediaries, this solution should be considered revolutionary. It introduces real copyright protection online, and a significant burden of responsibility for any potential copyright infringement rests primarily with DUUTO, not individual users.

Furthermore, if DUUTO obtains authorization – for example, through a licensing agreement – ​​this authorization also covers activities performed by service users (Article 17(2) of the Directive). However, this only applies if the users are not operating on a commercial basis or if their activities do not generate significant revenue. Therefore, the provision applies to users who do not perform these activities for commercial purposes.

In the absence of authorisation, DUUTO is liable for acts of communication to the public, including making available to the public, of copyrighted works and other protected subject-matter not covered by authorisation (Article 17(4) of the Directive).

However, DUUTO may be exempt from liability. Please note that all of the following conditions must be met cumulatively. Liability may be avoided if:

• DUUTO will demonstrate that it has made every effort to obtain the permit.
• DUUTO has made every effort to ensure the inaccessibility of individual works and other protected subject matter for which rightholders have provided service providers with the appropriate and necessary information. However, these efforts must be consistent with the high standards of professional diligence in the sector.
• DUUTO shall, immediately upon receipt of a duly substantiated objection from the rightholders, take steps to block access to the works or other protected subject matter covered by the objection or to remove them from its websites, and shall make every effort to prevent their future posting in accordance with point b).

Moreover, in order to protect the interests of DUUTOs that are just starting their activities, specific – liberalised – rules have been introduced related to the exclusion of their liability in the field of copyright infringement***. They are included in Article 17(6) of the Directive.

In summary, the introduction of these regulations was necessary for the benefit of creators and producers. Lacking the ability and tools to track all online locations where their works appear, they remained in a weaker position relative to large online platforms that profited from their work. DUTTO's current burden of ensuring that works posted on their platforms are made available legally and without infringing the rights of creators, publishers, and producers is entirely justified. This solution shifts responsibility from the user to the online platforms that derive the most benefits from sharing works. This approach to copyright law, given the development of the internet and the digital market, is undoubtedly a step in the right direction, as it fills a current gap in copyright protection.

*Copyright in the Digital Single Market Directive (EU) 2019/790 of the European Parliament and of the Council, Ryszard Markiewicz, Warsaw 2021, p. 201
**Copyright in the Digital Single Market Directive (EU) 2019/790 of the European Parliament and of the Council, Ryszard Markiewicz, Warsaw 2021, p. 202
***Copyright in the Digital Single Market Directive (EU) 2019/790 of the European Parliament and of the Council, Ryszard Markiewicz, Warsaw 2021, p. 240

This alert is for informational purposes only and does not constitute legal advice.

|