November 2019<\/p>\n\n\n\n
On 17 May 2019 the new Directive (EU) 2019\/790<\/a> on copyright and related rights in the Digital Single Market was officially published (DSM Directive). Article 17 (ex-Article 13) is one of its most controversial provisions. Article 17(10) tasks the Commission with organising stakeholder dialogues to ensure uniform application of the obligation of cooperation between online content-sharing service providers (OCSSPs) and rightholders, and to establish best practices with regard to appropriate industry standards of professional diligence. <\/p>\n\n\n\n This document<\/a> offers recommendations on user freedoms and safeguards included in Article 17 of the DSM Directive \u2013 namely in its paragraphs (7) and (9) \u2013 and should be read in the context of the stakeholder dialogue mentioned in paragraph (10).<\/p>\n\n\n\n Promoting Licensing and Limiting Preventive Measures<\/strong><\/p>\n\n\n\n Article 17 provides OCSSPs with two avenues to avoid direct\nliability for their users\u2019 uploads. The default avenue is for an OCSSP to\nobtain an authorisation to communicate the content uploaded by users. The\nprovision suggests, as only one example, (direct) licensing from the copyright\nholder but leaves open other ways to acquire authorisation.[1]<\/sup><\/a> Besides\ndirect licensing, additional options may include collective licensing\nmechanisms (voluntary, extended or mandatory), and statutory licensing (relying\non remunerated exceptions or limitations). <\/p>\n\n\n\n OCSSPs that do not obtain an authorization for their users\u2019\nuploads can still avoid liability if they comply with the conditions of the\nexemption mechanism in Article 17(4). OCSSPs must demonstrate that they have:\n(i) made best efforts to obtain an authorisation; (ii) made best efforts to\nensure the unavailability of specific works for which the rightholders have\nprovided them with the relevant and necessary information; and (iii) acted\nexpeditiously, subsequent to notice from rightholders, to take down infringing\ncontent and made best efforts to prevent its future upload.<\/p>\n\n\n\n The legislative design of Article 17 clearly favours the first \u2013 authorisation \u2013 avenue. As noted in the statement by Germany accompanying the approval of the Directive in the Council in April 2019, \u201cin the European compromise, licensing is the method chosen to achieve\u201d the authorization goal under this provision.[2]<\/sup><\/a> This is in line with the Directive\u2019s objective to \u201cfoster the development of the licensing market between rightholders and [OCSSPs]\u201d.[3]<\/sup><\/a><\/p>\n\n\n\n National implementations of this provision should therefore focus on achieving this goal, by fully exploring legal mechanisms for broad licensing of the uses covered by Article 17. In that light, they should limit, to the extent possible, the application of preventive obligations in Article 17(4)(b) and (c). Otherwise, the freedom of EU citizens to participate in democratic online content creation and distribution will be encroached upon and freedom of expression and information in the online environment would be curtailed. <\/p>\n\n\n\n The following baseline approach will better enable the formulation\nof national laws to respect user freedoms and safeguards enshrined in Article\n17. Although the essence of these freedoms and safeguards should at all times\nbe respected in the terms outlined below, it is noted that they are at greater\nrisk in the context of application of preventive obligations and restrictive\nlicensing models than under umbrella licensing approaches covering a wide\nvariety of content, including recent content releases. <\/p>\n\n\n\n User Freedoms: Exceptions and Limitations in Article 17<\/strong><\/p>\n\n\n\n The licensing and preventive obligations in Article 17 must be interpreted\nin the context of the rules on exceptions and limitations (E&Ls) contained\nin Article 17(7), as supplemented by the procedural safeguards in paragraph\n(9). Furthermore, it is important to consider other E&Ls potentially\napplicable to user uploads, such as that of incidental use, in Article 5(3)(i)\nof Directive 2001\/29\/EC on the harmonisation of certain aspects of copyright\nand related rights in the information society (InfoSoc Directive).<\/p>\n\n\n\n Article 17(7) includes a general and a specific clause on E&Ls. The general clause is contained in the first sub-paragraph, which states that\nthe preventive obligations in 4(b) and (c) should not prevent that content\nuploaded by users is available on OCSSP platforms if such upload does not\ninfringe copyright, including if it is covered by an E&L. This should be\nread in combination with the statement in Article 17(9) to the effect that the\nDSM Directive \u201cshall in no way affect legitimate uses, such as uses under\nexceptions or limitations provided for in Union law\u201d. In this respect, Recital\n70 emphasizes the need for the preventive obligations to be implemented without\nprejudice to the application of E&Ls, \u201cin particular those that guarantee\nthe freedom of expression of users\u201d. <\/p>\n\n\n\n The second paragraph of Article\n17(7) of the DSM Directive includes a special regime for certain E&Ls. It\nstates that \u201cMember States shall ensure that users\u201d of OCSSPs, when uploading\nor making available content, \u201care able to rely\u201d on the following exceptions:\n(i) quotation, criticism, review; (ii) use for the purpose of caricature,\nparody or pastiche. Previously, these were optional E&L in Articles 5(3)(d)\nand (k) of the InfoSoc Directive, which have not been implemented in all Member\nStates; where they have, the implementations differ.<\/p>\n\n\n\n Uploaded material that does not infringe\ncopyright and related rights as mentioned in the general clause should at least\ninclude the following: (i) material in the public domain; (ii) material subject\nto an (express or implied) license; (iii) material covered by an E&L,\neither in Article 17(7) of the DSM Directive and\/or in Article 5 of the InfoSoc\nDirective, the latter if implemented by the national law (e.g. incidental use).\nIn situations of conflict between Article 17(7) of the DSM Directive and\nArticle 5 of the InfoSoc Directive (i.e. an E&L is explicitly mentioned in\nArticle 17(7) but unavailable at the national level), the former creates an\nobligation under EU law to implement national E&Ls that offer the minimum user\nprivileges to which Article 17(7) refers.<\/p>\n\n\n\n Regarding the special regime for certain\nE&Ls, Recital 70 (first subparagraph) explicitly recognizes that these are\nparticularly important to strike a balance under the Charter of Fundamental\nRights of the EU (Charter) between the right to intellectual property (Article\n17(2)) and two fundamental freedoms\/rights in particular: freedom of expression\n(Article 11) and freedom of the arts (Article 13). The legislator thus awards special\nstatus to these E&L due to their basis in fundamental rights. Moreover, there\nis a change in legal qualification as compared to the InfoSoc Directive, since\nthe E&Ls mentioned in the second paragraph of Article 17(7) of the DSM Directive become mandatory<\/em> in the context of their application under Article\n17. This is clear from the text of the provision \u2013\n\u201cshall ensure\u201d \u2013 and from Recital 70 (first subparagraph), which states that\nsuch E&L \u201cshould, therefore, be made mandatory in order to ensure that\nusers receive uniform protection across the Union.\u201d <\/p>\n\n\n\n In light of the above, both a literal\nand teleological interpretation favour the qualification of the E&Ls in\nArticle 17(7) as user rights or freedoms<\/em>.\nIt follows that national lawmakers and courts must ensure that they remain\nfully operative despite licensing arrangements (between rightholders or their\nrepresentatives and OCSSPs) and preventive obligations under Article 17(4)(b)\nand (c) that are likely to make inroads into this area of freedom of EU\ncitizens. <\/p>\n\n\n\n It is important to clarify the scope of these mandatory E&Ls\nor user rights\/freedoms. They are mandatory not only for: (i) the acts covered by the\nspecific right of communication to the public regulated in Article 17; but also\n(ii) for all acts of uploading or making available by users on OCSSP platforms\nthat meet the requirements of the relevant E&Ls.<\/p>\n\n\n\n The main distinction is that the right of communication to the\npublic in Article 17 requires that the initial act of making available by the\nuser is of a non-commercial character or purpose, whereas the relevant E&Ls\ndo not include such a requirement, neither in the text of Article 17(7) nor in\nthe corresponding provisions in the InfoSoc Directive.<\/p>\n\n\n\n This interpretation is not precluded by the reference to \u201cexisting\nexceptions\u201d in Article 17(7). Such reference is not to E&Ls already\nimplemented into a specific national law at the discretion of a Member State.\nRather, \u201cexisting\u201d refers to those E&Ls already contained in EU law. In\nthis case, the concepts in Article 17(7), second subparagraph, are\nwell-established prototypes already existing in Article 5 of the InfoSoc\nDirective. <\/p>\n\n\n\n This reading is supported by a systematic and teleological\ninterpretation of the DSM Directive. First, Recital 70 does not\nrestrict the application of these E&Ls to those previously implemented in\nMember States, but rather assumes its mandatory application across the EU to\nthe benefit of all users of OCSSPs. Second, the fundamental rights basis of the\nE&Ls, their mandatory nature, and effectiveness of harmonization, as one of\nthe main purposes of the provision, would be undermined if these E&Ls would\nonly be implemented in certain Member States. Third, the reference to \u201cusers in\neach Member State\u201d in Article 17(7) clearly indicates that the E&Ls are not\nmeant to be implemented only in some<\/em>\nMember States, but that these user rights\/freedoms must be enjoyed in all\nMember States of the EU to the same effect.<\/p>\n\n\n\n The systematic and conceptual consistency of the E&Ls in the InfoSoc\nand DSM Directives must be ensured. This means that the concepts of\n\u201cquotation\u201d, \u201ccriticism\u201d, \u201creview\u201d, \u201ccaricature\u201d, \u201cparody\u201d and \u201cpastiche\u201d in\nArticle 17(7) should be considered autonomous concepts of EU law, to be\ninterpreted consistently across both directives, in line with CJEU case law.<\/p>\n\n\n\n The CJEU has already interpreted the concepts of \u201cparody\u201d and\n\u201cquotation\u201d in the InfoSoc Directive as autonomous concepts of EU Law in a\nnumber of judgements: Painer<\/em>\n(C-145\/10), Deckmyn<\/em> (C-201\/13), Funke Medien<\/em> (C-469\/17), Pelham<\/em> (C-467\/17) and Spiegel Online<\/em> (C-516\/17). From those\njudgements emerges a broad interpretation of the corresponding E&Ls, which\nrecognizes their fundamental rights justification, clarifies their requirements\nfor application, and restricts the ability of national lawmakers to further\nrestrict their scope. <\/p>\n\n\n\n To ensure the effectiveness of the E&Ls and user rights\/freedoms\nin Article 17(7), Member States should adopt a similarly broad interpretation\nof the remaining concepts in that provision, in particular \u201cpastiche\u201d. <\/p>\n\n\n\n A combined broad interpretation and national implementation of the\nconcepts contained in the E&Ls in Article 17(7) would cover the majority of\ntransformative types of user-generated content uploaded by users to OCSSP\nplatforms, such as remixes and mash-ups. <\/p>\n\n\n\n To fully achieve this objective and ensure the effectiveness of\nthese user rights\/freedoms, Member States should consider clarifying in their\nnational laws that the E&L for incidental use applies fully in the context\nof acts of making available by users on OCSSP platforms. This approach is\nconsistent with the wording of Article 17(9), according to which the DSM\n\u201cDirective shall in no way affect legitimate uses, such as uses under\nexceptions or limitations provided for in Union law\u201d.<\/p>\n\n\n\n Finally, a rational national lawmaker implementing the E&Ls in\nArticle 17(7) in line with the above recommendations should take this\nopportunity to fully harmonize the respective national E&Ls beyond uses concerning\nOCSSPs. That is to say, to the extent that they have not already done so, Member\nStates should take this opportunity to implement and\/or extend the E&Ls of\nquotation, criticism, review, caricature, parody or pastiche to other types of\nonline use, e.g. acts of making available by users to online platforms outside\nthe definition of OCSSP in Article 2(6) of the DSM Directive.<\/p>\n\n\n\n User\nSafeguards: <\/strong>Minimizing the Risks\nof Broad Filtering and Over-blocking <\/strong><\/p>\n\n\n\n Under Article 17(9), first subparagraph, OCSSPs must implement\n\u201ceffective and expeditious\u201d complaint and redress mechanisms for users in the\nevent of disputes over the disabling of access to, or the removal of, uploaded\ncontent. The main justification for such mechanisms is to support the use of\nthe mandatory E&Ls in paragraph (7) and ensure the uniform protection of resulting\nuser rights\/freedoms across the EU.[4]<\/sup><\/a><\/p>\n\n\n\n These mechanisms entail obligations for both rightholders and\nOCSSPs. On the one hand, rightholders that request the disabling or removal of\ncontent must \u201cduly justify\u201d their requests.[5]<\/sup><\/a> On the\nother hand, OCSSPs that administer complaint and redress mechanisms must: (i)\nprocess submitted complaints \u201cwithout undue delay\u201d; and (ii) subject decisions\nto disable or remove content to human review.<\/p>\n\n\n\n In addition, Member States must make available impartial\nout-of-court dispute settlement mechanisms, which mechanisms must not hinder\nusers\u2019 ability to seek judicial redress, in particular with a view to assert an\napplicable E&L, including the user rights\/freedoms in paragraph (7).[6]<\/sup><\/a>\n<\/p>\n\n\n\n The legislative design of Article 17(9) leaves significant margin\nof discretion for Member States when implementing these procedural safeguards\nfor users into national law. In order to avoid diverging national implementations and promote\nharmonisation across the EU, this margin of\ndiscretion should be used to ensure that OCSSPs\noptimize preventive measures for user rights\/freedoms over the preventive\nmeasures in Article 17(4)(b) and (c), including in the design of the complaint\nand redress mechanisms in Article 17(9).<\/p>\n\n\n\n This interpretation, which is set out in more detail below, should be favoured by national lawmakers, since: (i) it meets the proportionality requirement in paragraph (5); (ii) it respects the mandatory nature and fundamental rights justification of the user rights\/freedoms in paragraph (7); (iii) it has the best chance to comply with the prohibition of a general monitoring obligation in paragraph (8); and (iv) it complies with the requirements stated in paragraph (9), that the Directive \u201cshall in no way affect legitimate uses\u201d (such as uses under E&Ls) and that the complaint and redress mechanism must be \u201ceffective and expeditious\u201d. <\/p>\n\n\n\n In light of the above, we recommend that\nwhere preventive measures in paragraphs (4)(b) and (c) are applied, especially\nwhere they lead to the filtering and blocking of uploaded content before it is\nmade available to the public, Member States should, to the extent possible,\nlimit their application to cases of prima facie copyright infringement. In this context, a prima facie\ncopyright infringement means the upload of protected material that is identical\n<\/em>or equivalent<\/em> to the \u201crelevant and necessary information\u201d previously\nprovided by the rightholders to OCSSPs, including information previously\nconsidered infringing. The concept of equivalent<\/em> information should be\ninterpreted strictly.<\/p>\n\n\n\n If content is disabled or removed\nin the prima facie\ninfringement scenario, users are entitled to the\nsafeguards included in Article 17(9) and explained above. In the remaining cases (no prima\nfacie infringement) there should be no presumption that the uploaded content is\ninfringing, meaning that such content should remain available to the public in\nthe OCSSP until its legal status is determined, following a procedure\nconsistent with Article 17(9). We recommend that such procedure abides by the\nfollowing principles.<\/p>\n\n\n\n When the content uploaded by users does not meet the prima facie\ninfringement threshold but partially matches the \u201crelevant and necessary\ninformation\u201d provided by the rightholder, OCSSPs must offer users the\npossibility to declare that the content at issue is covered by an E&L or\nuser right\/freedom.<\/p>\n\n\n\n The\nmeans to provide such declaration should be concise, transparent, intelligible,\nand be presented to the user in an easily accessible form, using clear and\nplain language (e.g. a standard statement\nclarifying the status of the uploaded content, such as \u201cThis is a permissible\nquotation\u201d or \u201cThis is a permissible parody\u201d).<\/p>\n\n\n\n If a user does not provide that\ndeclaration within a reasonable period of time, during or following the upload\nprocess, then the OCSSP should be allowed<\/em>\nto disable or remove access to the content. If access to the content is\ndisabled or removed, users may use the in-platform and out-of-court procedural safeguards\nin Article 17(9).<\/p>\n\n\n\n If a user provides such a declaration (in\nthe simplified terms described above), the same should automatically qualify as\na \u201ccomplaint\u201d under Article 17(9), triggering the mechanism set forth therein.\nThe OCSSP must then inform the relevant rightsholder of this complaint. If the\nrightsholder wishes to remove or disable access to the content at issue it must\nduly justify its request, i.e. it must explain not only why the use in question\nis prima facie an infringement but also why it is not covered by an E&L\nand, in particular, the E&L invoked by the user.<\/p>\n\n\n\n The OCSSP will then subject the decision\nto disable or remove content to human review. The safeguards regarding the\navailability of out-of-court redress mechanisms and efficient judicial review\nremain applicable.<\/p>\n\n\n\n Since the legal status of the prima\nfacie non-infringing user upload is only determined at the end of this\nprocedure, OCSSPs that comply with the requirements of such procedure should not be liable for copyright infringement for the content\nmade available to the public under Article 17 of the DSM Directive for the\nduration of the procedure.<\/p>\n\n\n\n In order to ensure the effective\napplication and continued improvement of complaint and redress mechanisms\nMember States must ensure their transparency. A transparent complaint and redress procedure is\nnecessary to enable: (i) the respect for and effectiveness of the mandatory\nE&Ls in Article 17(7); (ii) that subsequent out-of-court\ndisputes are \u201csettled impartially\u201d and do not deprive users or their\nrepresentatives (such as users\u2019 organizations) of the legal protection afforded\nby national law, including the possibility to have recourse to efficient\njudicial remedies to assert the use of an applicable E&L, as required by\nArticle 17(9).<\/p>\n\n\n\n To that effect, we recommend that national laws set up\nproportionate reporting duties for OCSSPs regarding the functioning of\ncomplaint and redress mechanisms. At the very least, national laws should\nclarify that users\u2019 organisations shall have access to adequate information on\nsuch functioning.<\/p>\n\n\n\n Finally, we note that an underlying assumption for the application\nof the preventive measures in Article 17(4)(b) and (c) is that the necessary\ntechnology is available on the market and<\/em>\nmeets the legal requirements set forth in Article 17. In essence, preventive\nmeasures should only be allowed and applied if they: (i) meet the proportionality\nrequirements in paragraph (5); (ii) enable the recognition of the mandatory\nE&Ls in paragraph (7), including their contextual and dynamic aspects; (iii) in no way affect legitimate\nuses, as mandated in paragraph (9). <\/p>\n\n\n\n [1]<\/sup><\/a> See Article 17(1), second subparagraph, and 17(8), second subparagraph DSM Directive. Coordinating Academics and Drafters: <\/strong><\/p>\n\n\n\n Academics Endorsing these Recommendations (First Signatories)<\/strong> [as of 12 November 2019]: <\/p>\n\n\n Subsequent signatories<\/strong>:<\/p>\n\n\n\n If you are an academic wishing to endorse this recommendations, please send an email to:
[2]<\/sup><\/a> See Draft Directive of the European Parliament and of the Council on copyright and related rights in the Digital Single Market amending Directives 96\/9\/EC and 2001\/29\/EC (first reading) \u2013 adoption of the legislative act \u2013 statements (2019), in particular the Statement by Germany, para. 10.
[3]<\/sup><\/a> Recital 61 DSM Directive.
[4]<\/sup><\/a> Recital 70, first subparagraph, last sentence DSM Directive.
[5]<\/sup><\/a> Article 17(9), second subparagraph DSM Directive.
[6]<\/sup><\/a> Id.<\/p>\n\n\n\n\n
Jo\u00e3o Pedro Quintais – j.p.quintais@uva.nl<\/strong><\/a>
Subject: Academic Recommendations Article 17<\/strong>. <\/p>\n\n\n\n
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