Draft proposal for a directive on copyright in DSM – online services and right holders

Online services providing access to copyright protected content uploaded by their users without the involvement of right holders have flourished and have become main sources of access to content online. This affects right holders’ possibilities to determine whether, and under which conditions, their work and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it.

Where online service providers store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, thereby going beyond the mere provision of physical facilities and performing an act of communication to the public, they are obliged to conclude licencing agreements with right holders, unless they are eligible for the liability exemption provided in Article 14 or Directive 2000/31/EC. In respect of Article 14, it is necessary to verify whether the service provider plays an active role, including by optimising the presentation of the uploaded works or subject-matter or promoting them.

In view of the possible obligation to conclude a licencing agreement, online service providers storing and providing access to the public to large amounts of copyright protected works or other subject-matter uploaded by their users should take appropriate and proportionate measures to ensure protection of works or other subject-matter, such as implementing effective technologies and a high level of transparency towards right holders, including when, in accordance with Article 14 of Directive 2000/31/EC, the online service providers do not have a general obligation to monitor the information which they transmit or store or to actively seek facts or circumstances indicating illegal activity.

Collaboration between online service providers storing and providing access to the public to large amounts of copyright protected works or other subject-matter uploaded by their users and right holders is essential for the functioning of the technologies. While the right holders should provide the necessary data to allow the services to identify their content, the services must be transparent towards right holders with regard to the deployed technologies, to allow them to assess the appropriateness of the technologies. The services should in particular provide right holders with information of the type of technologies used, the way they are operated and their success rate for the identification of right holders’ content. These technologies should also allow right holders to get information from the services on the use of their content covered by an agreement.