Over the last years, the functioning of the online content marketplace has gained in complexity. Online services storing and providing access to copyright protected content uploaded by their users have flourished and have become main sources of access to content online.
When the content is uploaded by users who do not own the relevant rights in the whole or parts of the content they upload, this situation affects rightholders’ possibilities to determine whether and under which conditions their content is used as well as their possibilities to get an appropriate remuneration for it. It is therefore necessary to provide for certain measures that these service providers should take to protect the content.
Depending on the role played by information society service providers that store and provide access to the public to copyright protected works or other subject-matter uploaded by their users, which is to be assessed on a case by case basis by the courts, these services may perform an act of communication to the public. In cases where they communicate to the public copyright protected works or other protected subject matter, the service providers are obliged to ask for an authorisation from rightholders for the use of the works or other protected subject-matter, unless they are eligible for the liability exemption provided in Article 14 of Directive 2000/31/EC of the European Parliament.
Regardless of whether an information society service provider is engaged in an act of communication to the public or not, rightholders should be able to exercise their rights and 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 services that store and give access to a significant amount of copyright-protected 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.
It is reasonable to expect that this obligation also applies when information society service providers are eligible for the limited liability regime provided in Article 14 of Directive 2000/31/EC, due to their role in giving access to copyright protected content. The obligation of measures should apply to service providers established in the Union but also to services established in third countries, which offer their services to users in the Union.
The obligation to take measures to ensure the protection of copyright protected content should not apply to information society service providers which only store but do not give access to the public to copyright protected content, such as internet access providers, or providers of cloud services which are used by users to upload content for their individual use or to online marketplaces which are not used by users to access and consume digital content online but rather to provide access to works in the context of their main activity. Nor should it apply to providers of online services where the content is mainly uploaded by the rightsholders themselves or is authorised by them.
The assessment of whether an information society service provider stores and gives access to a significant amount of content needs to be made on a case-by-case basis and take account of a combination of elements, such as the total number of files of copyright-protected content uploaded by the users of the services and the proportion of the protected content uploaded by the users in the overall amount of content available on the service.
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.