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Estonian’s OPTION B of article 13 for DSM copyright directive

Clarification of communication to the public in the text

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. It is therefore necessary to clarify the copyright relevant obligations applicable to online services providing access to copyright protected content uploaded by their users.

In respect of Article 14 of Directive 2000/31/EC, 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.

It is reasonable to expect that this obligation also applies when information society service providers are eligible for the limited liability regime provided for 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 service providers 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.

Collaboration between information society service providers and rightholders is essential for the functioning of the measures, such as content recognition technologies. These measures should be applied with regard to works and other subject-matter identified by rightholders at the request of such rightholders and in cooperation with them. In particular, the rightholders should provide the necessary data on works and other subject-matter. The data should be provided by rightholders in a format allowing the service providers to apply the measures in an effective manner to the specific works or other subject-matter identified by rightholders.

Service providers should be transparent towards rightholders with regard to the deployed measures, to allow the assessment of their appropriateness. As different measures may be used by service providers, they should provide rightholders with appropriate information on the type of measures used and the way they are operated. Where relevant, notably where agreements have been concluded with rightholders for the use of the protected content, the service providers should also provide information on the success rates for the recognition of rightholders’ content, without prejudice to their business secrets.

The level of information given by the service providers should as a minimum be sufficient to allow rightholders to assess the effectiveness of the measures used without requiring the service providers to provide them with detailed and individualised information for each content identified. This is without prejudice to contractual arrangements, which may contain more specific provisions on the information to be provided.

The measures taken by the service providers should respect the freedom of expression and freedom to information of their users and be without prejudice to the application of the exceptions and limitations to copyright. For that purpose the service providers should put in place mechanisms allowing users to complain about the blocking or removal of uploaded content that could benefit from an exception or limitation to copyright. Replies to the users’ complaints should be provided in a timely manner. To make these mechanisms function, cooperation from rightholders is needed, in particular with regard to the assessment of the complaints submitted.

Member States shall provide that an information society service provider that stores and is actively involved in providing access to the public to copyright protected works or other protected subject matter uploaded by its users, including through the optimisation of the presentation and promotion of these works and other subject matter, is performing an act of communication to the public.

Member States shall determine the sanctions applicable to infringements of the obligations set in this Article. The sanctions provided shall be effective, proportionate and dissuasive and shall be without prejudice to European Union and national applicable laws on enforcement of intellectual property rights.