DIGITAL SINGLE MARKET DIRECTIVE: ARTICLE 17 MARKS A TURNING POINT FOR PROVIDERS OF ONLINE CONTENT SHARING SERVICE PROVIDERS
The European Parliament, at its plenary session on 26 March 2019, has definitively approved the text that aims to update the regulation on copyright. Article 17 of the Directive, in particular, is aimed at online content sharing service providers (OCSSPs) and provides for significant changes with regard to their legal liability.
Within the legal framework that the provisions of the above mentioned Directive aspire to define – that is, a harmonised legal framework able to contribute to the good functioning of the internal market and that stimulates innovation and investment, also in the digital field – a particular importance is assumed by article 17, which concerns the use of protected contents by providers of online content sharing services. This article is addressed to providers of online content sharing services (OCSSPs) who, according to the definition contained in art. 2 of the Directive, have as their main purpose that of archiving and giving access to the public to large quantities of works protected by copyright or other protected material uploaded by their users, which the service organizes and promotes for profit.
First of all, it is interesting to note that paragraph 1 of Art. 17 expressly clarifies that the OCSSPs, in allowing users free access to protected works, carry out an act of communication to the public or an act of making available. This leads to the conclusion that they have a direct responsibility for their own activities, when they give access to illegal content uploaded by users (and if the conditions of paragraph 4 are met, which will be briefly described below).
The Directive would therefore seem to establish a general principle of liability of online content sharing service providers if they contribute to the dissemination of content protected by copyright law, without any authorisation from the rights holder. However, they have to bear a heavy burden of proof. OCSSPs could be exempted from liability if they were able to prove it together: a) made best efforts to obtain an authorisation, and b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from, their websites the notified works or other subject matter, and made best efforts to prevent their future uploads.
Therefore, it seems that the only case in which the OCSSPs can clearly exclude its liability is when it has obtained prior authorisation from the rights holder. If this is not the case, then the OCSSP is obliged to implement technology to prevent the uploading of illegal content. Through appropriate technological implementation, the OCSSPs can avoid its responsibility by adopting a system whereby it can intervene immediately on services, following communications received from rightholders, to remove illegal content that has been uploaded, and also to prevent its future uploading (stay down).
Finally, it should be noted that the liability regime described does not apply equally to all online service providers as defined by the same Directive. In fact, the scope of Article 17, as specified in the recitals, exempts from those obligations providers of online content sharing services with an annual turnover of less than EUR 10 million, whose average number of unique visitors per month in the European Union does not exceed EUR 5 million.