New Directive on copyright in the era of digital : online sales platforms exclude new reponsibility regime
The European Union Copyright Directive 2019/790 of April 17, 2019, validated by the European Parliament on 26 March, has been formally adopted by the Council of the European Union on 15 April. It aims to adapt copyright rules to the digital age.
We focus our study on Title IV of this Directive entitled “Measures to achieve a well-functioning marketplace for copyright » and more specifically on Article 17 entitled “Use of protected content by online content-sharing service providers” which has been the subject of much debate since the Commission’s proposal to date.
I) Current regime of internet platforms
To this day, the responsibility regime of the internet platforms is governed by the law for the confidence in the digital economy of June 21, 2014 transposing the European directive 2000/31/CE of June 8, 2000.
The law makes a distinction depending of the website is hosting company or publisher.
The hosts have a passive role, neutral and their responsibility is a posteriori. More specifically, their liability will only be incurred if a right holder notifies them of illegal content and, to the knowledge of the disputed content, has not acted promptly to remove such information.
Contrary, publishers have an active role, determine the posted content and are responsible for the published contents. The responsibility of these platforms is a priori.
The online sales websites invoked their quality of hosting to limit their obligations and their responsibility. However, following a decision of the TGI of Paris of November 21, 2017 the online sales website Alibaba.com has been qualified as publisher, with an a priori responsibility. Indeed, judges considered that the site Alibaba.com had an active role in particular because of the setting up of Premium subscription allowing to rank the offers (see, to that effect the IP Alert of January 2018).
II) The responsibility of the internet platforms by the Directive
Application scope: The directive targets important actors in the online content market such as Youtube, Dailymotion or Facebook.
It is based on cumulative criteria to determine their obligations.
Thus, will be subject to reduced obligations, structures active for less than 3 years and having annual turnover of less than 10 million euros.
Service providers exceeding this standard will be subject to a proactivity requirement under the Directive for works diffused without authorization.
The Directive excludes non-profit online encyclopedias such as Wikipédia, non-profit educational and scientific directories, free development and software sharing platforms, online retail market place such as services provided by Amazon, Cdiscount or Ebay platforms as well as individual cloud storage services without direct access to the public.
On the applicable regime to the sharing platforms entering in the application scope aforesaid, the principle is the necessity to obtain the authorization of the rights holder to communicate or make available to the public their works by concluding, for example, a license agreement.
In addition, the platforms may be exonerated if they meet the following three cumulative conditions to demonstrate that they have :
- “made best efforts” to obtain permission form the rights holder to communicate the work to the public,
- “made best efforts” “in accordance with high industry standards of professional diligence” to ensure the unavailability of the protected work when the unauthorized communication thereof has been reported by the rights holder by means of “relevant and necessary information”,
- acted expeditiously to remove or block access to the work upon their receipt of the “sufficiently reasoned” notification by the right holder.
Finally, platforms must be transparent to right holders as to the measures taken in the context of their cooperation.
The transposition of the Directive in the French legislation must be completed by June 7, 2021.
If this Directive gives more responsibility to certain platforms for published content, it is clear that it does not bring any change in the situation of online sales platforms, important places of diffusion of counterfeits. Their qualification of host or publisher will still determine their liability regime.
- Publication date: June 2019
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