Proposals to Directive on copyright in DSM – communication to the public

Over the last years, the functioning of the online content marketplace has gained in complexity. Online services providing access to copyright protected content uploaded by their users have flourished and have become main sources of access to content online. Legal uncertainty exists as to whether such online services engage in copyright relevant acts and need to obtain authorisations from rightholders for the content uploaded by their users who do not hold the relevant rights in the uploaded content.

This directive clarifies, taking into account the case law of the Court of Justice of the European Union, under which conditions information society service providers that store and provide access to the public to copyright-protected works or other protected subject-matter uploaded by their users are engaging in an act of communication to the public and, as a consequence, are required to obtain an authorisation from the relevant rightholders for the use of the content.

Certain information society service providers which store and provide access to content uploaded by their users, may benefit from the limited liability regime provided in Article 14 of Directive 2000/31/EC under certain conditions. In respect of Article 14, it is necessary to verify whether the service provider plays an active role, including by optimizing the presentation of the uploaded works or subject-matter or promoting them, irrespective of the nature of the means used therefor.

Where authorisations are granted by rightholders to information society services for the use of their content uploaded by their users of the services, these authorisations should also cover the liability of the users for copyright relevant acts but only in cases where the users do not act in their professional capacity.

In order to ensure that rightholders can exercise their rights, they should be able to prevent the availability of their content on such services, in particular when the services give access to a significant amount of copyright protected content and thereby compete on the online content services’ market. It is therefore necessary to provide that information society service providers that store and give access to a significant amount of works or other subject-matter uploaded by their users take appropriate and proportionate measures to ensure the protection of copyright protected content, such as implementing effective technologies.

The assessment of the appropriateness and proportionality of measures to be taken by the information society service providers should among other things take account of the type of content uploaded by their users, the state of the art of existing technologies per type of content and the size of the service. Where different categories of content are uploaded, such as music, text and audiovisual content, different measures may be appropriate and proportionate per type of content, including content recognition technologies.