The Changing EU Landscape For Online Content Regulation

• Published date: 23 December 2020
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Advertising, Marketing & Branding
• Law Firm: Arthur Cox
• Author: Ms Olivia Mullooly, Gavin Woods and Colin Kavanagh

Copyright Infringement and Licensing

Current Regime

Currently, liability for the hosting and transmission of copyright protected content online in the EU is determined by the regime transposed into national laws pursuant to the Directive on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (2000/31/EC) (E-Commerce Directive). In addition, the Directive on the harmonisation of copyright in the information society (2001/29/EC) (InfoSoc Directive) specified a number of exceptions and limitations to liability for infringement of the reproduction right held by authors and rightsholders, which Member States could implement in national laws, including any use for the purpose of caricature, parody or pastiche.

In essence, the E-Commerce Directive sought to balance the rights of rightsholders with the information age online by introducing three exceptions:

• the "mere conduit" exemption for the transmission of content where the service provider does not initiate the transmission and is not involved in the selection of the content or its recipient;
• the "caching" exemption for the automatic and temporary caching of content for the sole purpose of transmission; and
• the "hosting" exemption where the service provider has no actual knowledge of the illegal activity or information, facts or circumstances from which the illegal activity is apparent.

In all cases, the exemptions preserve the power of the courts to grant injunctive relief, where appropriate and, in addition, the caching and hosting exemptions are subject to a "notice and takedown" regime meaning that the relevant service provider is only exempt provided it removes or disables access to content on being put on notice of the infringement. There is, under these exemptions, no obligation on providers to actively monitor their platforms and services for infringing content. This regime remains unchanged for content whose removal is being sought for reasons other than copyright infringement via online content sharing platforms, summarised below.

New Liability Regime for Online Content Sharing Service Providers (OCSSPs)

The Copyright and Related Rights in the Digital Single Market Directive ((EU) 2019/790) (DSM Directive), which was published on 17 May 2019 and is due to be transposed by Member States by June 2021, will radically alter the liability regime for online content sharing platforms. The implementation of the DSM Directive, specifically Article 17, will mean a transition from a "notice and takedown" regime towards a "notice and staydown" regime for infringing content, but may also necessitate the use of filtering technologies to prevent the upload of infringing content to such platforms. Article 17 imposes a much more onerous liability regime for copyright infringement on OCSSPs than the system under which they currently operate. It requires that OCSSPs take active measures to obtain the "authorisation" of rightsholders whose works are made available to the public on the OCSSP site. This authorisation will generally take the form of a licensing agreement (if the relevant rightsholders agree to so licence). If licences are not concluded, these platforms must make their "best efforts" to ensure that content not authorised by the rightsholders is not available on their website. We have previously summarised this new regime in the following briefing: Online content sharing - pay to play?

Practical implementation of the new OCSSP liability regime

The European Commission has stated that the "best efforts" obligation "does not prescribe any specific means or technology"¹. Furthermore, the DSM Directive itself states that the application of Article 17 "should not lead to any general monitoring obligation"².

However, many academics and stakeholders contend that a practical interpretation of Article 17 imposes a filtering obligation on OCSSPs, such that they must put in place a system to determine whether the works that are made available to the public on their site are copyright-protected, and actively seek out the consent of rightsholders before...