Now that the European Parliament has approved the final text of the proposed Copyright Directive, and we await the Council of the EU’s vote for approval before it can be enacted (for more information see here), clients have begun to ask us about its possible impact on them.
We’ve been following the development of the Copyright Directive since its inception in 2016. The European Commission introduced the Directive as part of its Digital Single Market strategy to “make copyright rules fit for the digital age”. The driving force behind the Directive has been to try and secure better remuneration for rightholders in an age where content can be easily distributed online, with or without the rightholder’s consent. Enter Article 17 (formerly Article 13 in previous drafts): arguably the most controversial provision of the Copyright Directive, fuelling years of lobbying by rightholders and U.S. tech giants such as Google and Facebook.
In short, Article 17 provides that certain defined online platforms – ‘Online Content Sharing Service Providers’ (‘OCSSPs’) - may be liable for copyright infringement for providing public access to copyright-protected content which their users upload to their platforms, unless they can show that they have taken the prescribed actions.
The question that many internet platforms are now asking themselves is whether they are actually caught by the requirements in Article 17. In other words, do they fall within the definition of an OCSSP provided by the Directive? We’ve drawn together a few of our preliminary observations for this article.
Definition of an OCSSP
Article 17 defines an OCSSP as:
- an information society service (an ‘ISS’)
- whose main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works uploaded by its users
- which it organises and promotes for profit-making purposes.
Intended ‘targets’ of Article 17
Article 17 is intended to make “internet giants” remunerate content creators and rightholders whose content they monetise on their platforms by e.g. organising and promoting it. This is reflected in the recitals to the Directive, one of which states that the definition of OCSSPs “should target only online services that play an important role in the online content market by competing with other online content services, such as online audio and video streaming services, for the same audiences” (our emphasis). When considering the various constituent elements of the definition of an OCSSP (addressed below), it is helpful to keep this overarching objective in mind.
Information Society Services
ISSs are “providers of a service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services”. This covers a wide range of economic activities taking place online and generally includes websites, search engines and online content services such as on-demand music and video services. It’s a fairly broad definition that can capture many different services.
Main or one of the main purposes
In most cases, it should be self-evident whether or not storing and providing public access to large amounts of uploaded content is a main purpose or merely incidental to another main purpose. For example, a social media platform that provides an infrastructure for storing and providing public access to content uploaded by its users, be it photos, videos, comments or articles (much of which will be copyright protected) is likely to fulfil this requirement.
Where a platform has multiple purposes or more than one main purpose, the analysis may be a little more nuanced. There is clearly a relationship between the constituent elements of the definition of an OCSSP. The prominence and importance on the platform of the other elements may therefore inform the assessment of the platform’s main purpose or purposes. For example, where there is a very large amount of content uploaded on to the platform which is promoted to generate significant profits, that activity is more likely to be one of the main purposes of the platform.
Assuming the ‘main purpose’ requirement is met, it is necessary to determine what constitutes public access. For example, must the uploaded content be accessible by the public generally, or must the public be a certain size? What about platforms which are only open to a closed group of members?
Article 17(1) expressly states that an OCSSP requires authorisation from rightholders referred to in Article 3 of the InfoSoc Directive in order “to communicate or make available to the public works or other subject matter”. We expect that the CJEU’s interpretation of “the public” for Article 3 will be used to inform and shape the meaning of “public access” in Article 17. In the context of Article 3, the public has been interpreted as being an “indeterminate number” of individuals, implying a “fairly large number of persons” and that it “should not be restricted to specific individuals belonging to a private group”.
Whether an online platform is providing public access to a “large amount” of copyright works is a factor which the recitals to the Copyright Directive state must be decided on a “case-by-case basis” taking into account “a combination of elements such as the audience of the service and the numbers of files of copyright-protected content uploaded by the users of the service”.
We know the Commission intended Article 17 to cover “large online platforms” such as YouTube and Facebook. YouTube has over 1.9 billion logged in users every month, watching around 1 billion hours of video daily. According to statistics in 2015, 300 hours of video are uploaded to YouTube every minute. It is uncontroversial to suggest that YouTube provides public access to a large amount of copyright works. Yet it remains unclear what “large” might mean at its lowest level. In the absence of any clarification/guidance, that will have to be flushed out in litigation.
Organises and promotes for profit-making purposes
An online platform must be organising and promoting the copyright content for profit-making purposes to be an OCSSP. The recitals state that this includes “categorising it and using targeted promotion within it in order to attract a larger audience” and that profit can be direct or indirect. We generally expect that this part of the definition of an OCSSP will be relatively straightforward to apply. It simply requires a factual analysis. There may be some debate over the extent to which any profit can be indirect, although we anticipate this will be generously construed, particularly where the other elements of the definition are met.
Online platform expressly excluded from the scope of Article 17
Certain businesses have been specifically carved out of the definition for OCSSPs. These include providers of services such as (suggesting it is not a closed list of service providers):
- not-for-profit encyclopaedias (e.g., Wikipedia)
- not-for-profit educational and scientific repositories;
- open source software-developing and sharing platforms (e.g. GitHub);
- electronic communication service providers;
- online marketplaces (the recitals suggesting the main activity of which is online retail) (e.g. eBay);
- business-to-business cloud services (e.g. Microsoft OneDrive); and
- cloud services that allow users to upload content for their own use (e.g. Apple’s iCloud).
Quite understandably, online platforms are keen to know whether they fall within the scope of Article 17. The definition of an OCSSP certainly leaves room for interpretation and will no doubt be tested in litigation in due course. We can also expect further guidance from the Commission on the application of Article 17 which may provide some further clarity and legal certainty on this definition. It is, of course, both a useful and necessary exercise to analyse each constitute element of the definition of an OCSSP when seeking to determine whether it applies. However, it is also important to recognise that there is likely to be a degree of interdependence between those elements. Finally, it may be a useful cross-check to engage in abductive reasoning: am I the sort of online platform that Article 17 is targeting?
Sarah Blair and Toby Headdon