DSM Watch: The new copyright directive – What will happen to the liability privilege of platforms?

by Hogan Lovells
Contact

Hogan Lovells

Since the first proposals for amendments to the European Commission’s draft copyright directive were leaked earlier this month, we have seen quite some discussion on what the Digital Single Market will bring about. The leaked report was drafted by the European Parliament’s Committee on Legal Affairs. MEP Therese Comodini Cachia takes responsibility over the subject. The paper puts forward an impressive total of 73 proposals for change.

Last week, we cast an eye on a highly controversial aspect of the new copyright directive: the introducing of new neighbouring right for press publishers (see our blog post). Whilst, the Commission is clearly in favour of such right, the Parliament rather prefers a mere assumption of press publishers acting on behalf of the authors when going against unauthorised use of press publications on the Internet. Today, we want to touch upon an equally important subject: Article 13 of the Commission’s draft directive holds a set of new obligations for online service providers.

Pursuant to Article 13 of the draft, online service providers storing and providing the public with access to large amounts of works uploaded by their users shall take measures in order to prevent infringements. Specifically, such platforms shall, in cooperation with rightholders, “take measures to ensure the functioning of agreements concluded with rightholders for the use of their works or other subject-matter or to prevent the availability on their services of works or other subject-matter identified by rightholders through the cooperation with the service providers.” According to the Commission, a possible measure could for instance be the implementation of content recognition technologies. However, the Commission has, as yet, failed to give any indication as to how such an obligation could work together with the liability privilege providers enjoy under the current e-Commerce Directive 2001/31.

Not surprisingly, the European Parliament’s criticism starts right there. Rightly, Therese Comodini Cachia’s report demands clarification as to how the applicable provisions of both directives have to be read in context. Article 13 in its present wording would inevitably lead to legal uncertainty.

Consequently, the leaked report suggests a significant change in the wording of said provision: Instead of referring to platforms that “store and provide access” the rapporteur argues for limiting the scope only to platforms that are “actively and directly involved in the making available of user upload“. Mere passive services shall not be deemed sufficient in order to fall under the provision. In essence, the Parliament wishes to go back to the definition of making a work available as set out in Article 3 of the InfoSoc Directive 2001/29 – a prudent and welcome proposal safeguarding consistency in terminology and approach of digital copyright law.

What is particularly noteworthy in this context is the fact that the Parliament’s approach would lead to a recognisable limitation in the scope of application of Article 13 of the draft directive. In this context, many platforms such as video-sharing websites are likely to be seen as not making available any works through their current services. At least in Germany, we have seen quite a number of court rulings suggesting such assessment. For instance, Case Ref.: 29 U 2798/15 of the Higher Regional Court of Munich which decided that videos featured a video-sharing website were made available to the public by the user who uploads the work, not by the website. The mere transmission of a work to other users by the platform as a consequence of the making available was not enough to fulfil the criteria of making a work available.

In conclusion, the Parliament’s proposal can be seen to point to the right direction. Copyright and e-commerce are closely related and intermeshed. Accordingly, the liability privilege and the measures to be taken in order to adequately protect copyright owners and other IP rightholders must work seamlessly together. This begins with the same terminology and the same definitions being used and continues with the avoidance of contradictive provisions at both ends. The Commission’s proposal was not ideal in that respect. The now leaked report of the Committee on Legal Affairs is valuable contribution to the discussion that will further continue in the course of the upcoming trilogue. We will follow this process closely.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Hogan Lovells | Attorney Advertising

Written by:

Hogan Lovells
Contact
more
less

Hogan Lovells on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.