European Commission issues guidance on Copyright Directive's Article 17

By Emmanuel Legrand

The European Commission has published its guidance on Article 17 of the new Directive on Copyright in the Digital Single Market, which provides for new rules on content-sharing platform and on the liability of digital service providers (DSPs). 

  The publication of the guidelines coincides with the June 7 deadline set by the Commission for EU Member States to transpose the new EU copyright rules into national law. At this stage, only the Netherlands, France, Germany and Hungary have fully transposed the Directive (with Denmark close to complete the process). 

  Most EU countries are still in the process of transposing the Copyright Directive as well as the newDirective on television and radio programmes, which will make it easier for European broadcasters to make certain programmes on their online services available across borders.

Allow for more digital uses

  The Commission said that the two Directives, which were adopted by Parliament and the Council of Europe in June 2019, aim "to modernise EU copyright rules and to enable consumers and creators to make the most of the digital world" and that these new rules "will stimulate the creation and dissemination of more high-value content and allow for more digital uses in core areas of society, while safeguarding freedom of expression and other fundamental rights."

  For Thierry Breton, Commissioner for Internal Market, Europe has "set a standard for the use of creative content online" with the new copyright rules. He added: "The new rules ensure that creators are fairly remunerated in the digital space, while protecting freedom of expression, a core value in our democracies. It shows our determination to ensure what is illegal offline, is also illegal online. In particular, the guidance on article 17 will help to foster the licensing market for the benefit of creators and also of users, who will benefit from increased legal certainty when uploading their content online.” 

  Margrethe Vestager, Executive Vice-President for a Europe fit for the Digital Age, considers that both the Copyright Directive and the Directive on television and radio programmes "will allow for more content to be available across the EU," while providing creators with "a fair remuneration for their work" and users with "clear rules protecting the freedom of speech."

Provide practical indications

  The guidance on Article 17 of the new Copyright Directive is aimed at supporting "a coherent application across the Member States of this important provision of the new EU copyright rules," according to the Commission. The guidelines were drafted after a public consultation between October 2019 and February 2020 with stakeholders, including rights holders and online content sharing service providers (OCSSPs), followed by a targeted written consultation between July and September 2020.

  Article 17 was one of the most contested provisions in the Directive. It was designed to ensure that online platforms had licensing deals in place with right holders for the content uploaded on their website or make "best efforts" to identify rights owners and take down unlicensed content. Article 17 "provides for a specific regime of authorisation and liability for copyright and rights related to copyright," according to the guidance document.  

  The guidance, said the Commission, will provide "practical indications" on the main provisions of Article 17, in order to  help "market players to better comply with national legislations in their implementation."

A non-binding document

  Whilst the guidance document is not legally binding, "it has been formally adopted as a Communication by the Commission," and therefore carries the weight of the Commission. The 26-page document can be read as a complement to the Directive and a framework for future rules of engagement between rights holders, DSPs and users. 

  As per the guidance, Article 17(1) and (2) provide that online content-sharing service providers "carry out a copyright relevant act of 'communication to the public' when they give access to copyright-protected content uploaded by their users, and therefore need to obtain an authorisation from the relevant rightholders."

  The guidance determines that Article 17 "does not introduce a new right in the Union’s copyright law. Rather, it fully and specifically regulates the act of ‘communication to the public’ in the limited circumstances covered by this provision ‘for the purposes of this Directive’," and provides for a specific regime that allows the online content-sharing service providers to avoid liability, under specific conditions, for the act of communication to the public within the meaning of Article 17(1)."

Confirming the 'best efforts' concept

  This specific regime "takes into account the fact that online content-sharing service providers give access to content, which is not uploaded by them but by their users. These specific conditions must be explicitly introduced in national law."

  In her analysis of the guidance, copyright expert Eleonora Rosatti wrote on the IPKat blog that the document "confirms that Member States cannot alter the notion of ‘online content sharing service provider’ (OCSSP), the concept of ‘best efforts’ is an autonomous concept of EU law, which must be applied uniformly across the EU, and Member States cannot set quantitative thresholds in connection with ‘large amount’ in the definition of OCSSP."

  Rosatti said the guidance is not binding but member states and courts can "take the Commission’s guidance into consideration in order to decide disputes submitted to them, because of the indirect effect that non-binding law has. This said, in accordance with settled case law, the Commission’s Article 17 Guidelines cannot be regarded as conferring rights on individuals, which the latter may rely upon before such courts and authorities. As a result, the Guidance shall not be enforceable per se before national courts and authorities, though it may form the object of a request for a preliminary ruling."

A missed opportunity

  Reactions to the publication of the guidance have been mixed. GESAC, the groupment of 32 European authors' societies, noted that "although there are some useful clarifications on some important aspects of the implementation in line with the objective of the Directive, the Guidance risks creating uncertainty and ambiguity by going beyond the scope of the Directive, which makes the exercise an overall missed opportunity."

  Therefore GESAC considers that "keeping the Directive’s text as the main guiding document is the safest and most appropriate approach for transposition."

  IMPALA, the Brussels-based organisation representing the independent music sector, is on the same line. "The main IMPALA message to member states remains the same – to implement article 17 swiftly and faithfully according to the text of the directive to ensure maximum harmonisation," said the organisation in a statement.

Sticking to the text of the Directive

  IMPALA pointed out that the Netherlands, Hungary and France, the first three member states to adopt the directive, have "shown the way by sticking closely to the text of the Directive." Meanwhile, Germany, on the contrary, has "provided an example of what should not be done as their legislation deviates from the Directive and creates new exceptions and potential loopholes."

  Helen Smith, IMPALA’s Executive Chair, commented: “We’re still in the process of analysing the text, especially as certain aspects clearly go beyond the text of Article 17. In any event, the job of member states is to implement the text of the Directive itself and the EC itself confirms the non-binding nature of the guidance. The Directive reflects the balance that three years of negotiations produced. European recovery depends on strong copyright rules implemented on time.” 

  On the positive side, GESAC said the guidance "usefully makes it clear that seeking a license from CMOs is a ‘basic’ requirement for all OCSSPs under their licensing obligation, and refusing such collective licenses would be an infringement leading to their liability."

Deviating from the language of the Directive

  However, for GESAC, the guidance "deviates" from the language of the Directive by creating new provisions in several instances, "leading to uncertainty and possible weakening of the rights of creators in a very unhelpful manner."

  For example, GESAC regrets that the guidance document "suggests an exception for reproduction right for the OCSSPs making protected works available, whereas this is mentioned nowhere in the Directive."

  The guidance specifies that "the acts of communication to the public and making content available in Article 17(1) should be understood as also covering reproductions necessary to carry out these acts. Member States should not provide for an obligation on online content-sharing service providers to obtain an authorisation for reproductions carried out in the context of Article 17."

Possible misinterpretations

  GESAC counters, "If anything, Article 17 would require licensing all relevant rights fully, as the OCSSPs can no longer benefit from the safe harbour regime of the E-Commerce Directive." Sources in Brussels said the reproduction right was not in the original Directive, and countries like France have in fact taken a completely opposite view on the topic. 

  In a statement, GESAC "calls for a cautious approach from Member States in this respect and warns against possible misinterpretations leading to unwarranted new liability safe harbours, that would be totally against the core objective of Article 17."

  GESAC also hopes that the Commission will act "as a true guarantor of the proper implementation of EU legislation and that Member States will remain faithful to the word and spirit of Article 17, in their transposition process, and not allow the bypassing of democratically adopted rules by the concerned platforms that have repeatedly shown their unwillingness to comply with EU law." 

Stand up for copyright maximalists

  US advocacy group for a free internet, the Electronic Frontier Foundation (EFF), lamented that the EU Commission missed an opportunity "to stand up for users and independent creators by mitigating Article 17's threat to free expression" and has chosen instead "to stand up for a small but powerful group of copyright maximalists."  

  EFF said that in several meetings during the Stakeholder Dialogue and through consultations developing guidelines for the application of Article 17, the free internet advocacy organisation and other civil society groups "stressed that users' rights to free speech are not negotiable and must apply when they upload content, not during a later complaint stage."

  EFF found that the first draft of the guidance document "seemed to recognise those concerns and prioritise user rights," but the final result is "disappointing," in particular in failing "to state clearly that mandated upload filters undermine the fundamental rights protection of users."

Continue the battle for freedom of expression

  However, on the plus side, EFF noted that the EU Commission stressed that Article 17 did not "mandate the use of specific technology to demonstrate 'best efforts' to ensure users don't improperly upload copyright-protected content on platforms."

  The EEF concluded by stating that "this battle to protect freedom of expression is far from over."

> Author's Group regrets the slow pace on the Directive's implementation

 The Authors’ Group – which includes European Composer and Songwriter Alliance (ECSA), European Writers’ Council (EWC), Federation of European Film and TV Directors (FERA) and Federation of Screenwriters in Europe (FSE) – said it "deeply regrets the slow pace of implementation of the 2019 Copyright Directive" and called "on all EU Member States which do not comply with the Directive to engage urgently in a faithful and prompt implementation."

  The Group regrets that "only a handful of EU Member States have now effectively transposed the Directive." In a statement, the Group elaborates: "While we acknowledge the impact of the pandemic on this delay, the Authors’ Group deeply regrets such a slow pace of implementation, and its concrete consequences. As the Covid-19 crisis has a detrimental and long-lasting impact on our members’ livelihoods, those delays can only exacerbate the current situation and perpetuate a system already acknowledged by the Directive to be unfair and inefficient."

  They called on the European Commission "to monitor closely the situation and launch infringing procedures where necessary. As the rise of streaming platforms on the EU market has been accelerated by the pandemic, it is more urgent than ever to ensure that authors can benefit from their creative successes when their works are exploited, in particular online. Let us not miss this opportunity to promote a sustainable future for Europe’s authors and future generations who want to write, compose and create."