The EU Copyright Directive: Potential Copyright Liability and a “Best Efforts” Standard for Platforms

Fenwick & West LLP

Fenwick & West LLP

In 2019, the Council of the European Union’s Committee of Permanent Representatives approved a Directive on Copyright in the Digital Single Market to respond to developments in the modes and markets for creation, production and dissemination of information and copyrighted works. An EU directive, as distinct from an EU regulation, sets a standard that EU member states must meet with their own legislation. As a result, the focus now turns to how each state will implement the controversial rules by the June 7, 2021, deadline.

We look at key aspects of the new directive—which will likely have wide-ranging effects on online platforms that will extend well beyond EU borders—as well as considerations for companies and online service providers going forward.


Many commentators saw in the EU directive an effort both to target American Internet platforms with restrictions and obligations, and to assert European interests in the global Internet ecosystem. In this respect, the new rules resemble the EU’s General Data Protection Regulation, which has begun to affect data privacy and information collection practices worldwide.

The two provisions discussed below received the most attention and criticism for their effect on major incumbent online service providers and on the environment for the development of new and competing services.

Article 15: “Protection of press publications concerning online uses”

Article 15 (formerly Article 11) grants press publishers (covering journalistic matter in any media, including newspapers and magazines) a right to be compensated for any commercial use of their content by an “information society service provider” (generally, online service providers). It is unclear how far the concept of “press publisher” extends, given that the phrase is undefined. The directive explicitly states that its protections should not “apply to websites, such as blogs, that provide information as part of an activity that is not carried out under the initiative, editorial responsibility and control of a service provider, such as a news publisher.” The right expires two years after the material is “published” (calculated starting from January 1 of the year following the date that the press publication is first published). It does not apply retroactively to material published before June 7, 2019, when the directive was adopted by the member states and came into force.

Mere hyperlinking and the “use of individual words or very short extracts” are exempt from the provision. So are merely private or non-commercial uses.

Member states are responsible for ensuring that authors of press publications receive “an appropriate share” of revenue that publishers receive under the provision. The EU Parliament stated in a press release that this right is effected in part by automatically giving right to news publishers to negotiate licensing agreements on behalf of its journalists for content used by news aggregators.

Article 17: “Certain uses of protected content by online services”

Copyright Liability and Related Obligations for UUC Platforms

The directive requires user-uploaded-content (UUC) platforms to obtain licenses from rightsholders to host and disseminate copyrighted works. This marks a change from protection that the EU’s e-Commerce Directive, issued in 2000, had historically afforded information society service providers against copyright infringement liability for the actions by their users.

Under the copyright directive, online platforms will be liable for copyright infringement by their users, unless the platforms have permission from rightsholders or can establish that they have:

  • Made “best efforts” to obtain permission;
  • Made “best efforts,” consistent with “high industry standards of professional diligence,” to ensure that any content flagged by rightsholders are made unavailable on the platform; and
  • Acted expeditiously to disable or remove copyrighted work from the platform upon notice by the rightsholder, and made “best efforts” to prevent future uploads. The prevention of future uploads requires what some refer to as an “upload filter.”

“Best efforts” is usually an extremely high standard. In this context, to determine whether a platform has met the standard, member states must consider the type and size of the platform, the user base, the types of works made available on the platform, and the available solutions and/or costs involved. Member states must ensure that platforms build an “effective and expeditious complaint and redress mechanism” for users to address disputes over the removal or disabling of content.

Platforms must provide to rightsholders, upon their request, “adequate information” regarding the practices underlying their “best efforts” at compliance with Article 17 (formerly known as Article 13). Where platforms have licensed content from rightsholders, they must also provide information on the use of any content subject to the licensing agreement.

Rightsholders seeking to remove or disable content must provide a reason for their request. In addition, they are entitled to a response “without undue delay” and review of any removal decisions by a human person (rather than a machine).

Users’ Protections and Rights

Any authorization the UUC platform receives from the rightsholder will automatically pass onto the end-user, so long as the end-user’s use of the material is not commercial or “does not generate significant revenue.” (It is not clear from the text of the directive what permissible uses may be commercial but not result in “significant revenue.”)

Any efforts by a UUC platform to secure licenses from a rightsholder should not interfere with its users’ rights to use the content in ways covered by existing exceptions to copyright infringement including for “quotation, criticism, review” and for “caricature, parody, or pastiche.” Article 17 requires member states to ensure that users have an affirmative right to use their UUC for these purposes.

Article 17 also states that its application shall not lead to any “general monitoring” obligations by the service provider. In other words, member states should not require or suggest that the platforms generally monitor UUC in any manner that would be inconsistent with data protection laws.

Member states must also enact alternative dispute resolution schemes to provide users an extrajudicial means of asserting their rights should platforms remove content that is uploaded for one of the protected categories of expression.

“Lite” Version of Article 17 for Small New Platforms

Smaller and younger platforms are entitled to a lower “best efforts” standard. Those that have been available in the EU for less than three years or have an annual revenue below 10 million euros are required to show “best efforts” only in obtaining permission from rightsholders and to act expeditiously to remove content upon notice. Once these platforms average over five million unique visitors a month, however, they must also demonstrate best efforts to prevent future uploads of protected content.

Exemptions from Article 17 Licensing Requirements

According to the Copyright Reform FAQ, certain types of UUC platforms and providers are exempt from Article 17’s licensing requirements, including:

  • Open-source software development and sharing platforms (i.e., Github)
  • Electronic communication service providers (i.e., WhatsApp)
  • Nonprofit scientific or educational repositories
  • Nonprofit online encyclopedias (i.e., Wikipedia)
  • Online marketplaces (i.e., eBay)
  • Business-to-business cloud services and UUC cloud services (i.e., Dropbox).

Other Provisions

The EU directive provides exemptions from copyright liability for the following:

  • Text- and data-mining for research organizations and cultural heritage institutions;
  • Teaching and other educational purposes by educational institutions, where the work is accredited if possible; and
  • Preserving cultural heritage.

The new rules impose certain responsibilities on the EU member states to facilitate content distribution and licensing, including:

  • Consulting “rightsholders, collective management organizations and cultural heritage institutions in each sector” to facilitate the licensing of “out-of-commerce works” (works that are not or have never been commercially available) for use by cultural heritage institutions
  • Providing an “impartial body or of mediators” to assist with concluding licensing agreements for audiovisual content of online streaming platforms (Article 10)


Supporters of the directive have argued that it was important to compensate copyright holders more fully in the online environment, while critics have cautioned against a vaguely-written law that threatens free speech and appears to target American companies as a protectionist move.

Although the directive’s text does not prescribe any particular means of detecting and removing protected works, and the European Commission has clarified that it does not require “any specific technology to recognise illegal content,” many have criticized the “best efforts” standard as essentially requiring all covered platforms to establish a content identification and filtering system. Critics point to the fact that the “best efforts” standard requires platforms not only to remove copyright-protected content in reaction to notifications but also to prevent future uploads of copyright-protected content. Others have noted that any filtering system is inherently unreliable and prone to removing permitted user-generated content, like memes and gifs. And more have criticized the standard as imposing a burden that only the biggest and most resourceful companies can meet, thereby securing their monopoly or increasing their market share in the EU.

The European Commission and the member states are expected to organize “dialogues” among stakeholders to arrive at a uniform application of the directive. The 28 individual member states will then have up to 24 months to enact local legislation to meet the directive’s requirements.

France became the first member state to implement the provisions of the directive on July 23, 2019. It was added to the country’s Intellectual Property Code (IPC) “to create a neighboring right for the benefit of the press agencies and the press editors” outlining the rights of press editors and news agencies. The new French law requires platforms to obtain authorization from a press agency or publisher before reproducing or communicating all or part of the press’s publication in accord with the core change of Article 15 of the directive.

Other sections of the law show that France’s implementation of Article 15 goes beyond the requirements of the directive. Whereas the new rules state that “Member States shall provide that authors of works incorporated in a press publication receive an appropriate share of the revenues that press publishers receive for the use of their press publications by information society service providers,” Article L.218.4 of the French IPC requires platforms, when determining compensation, to base it on direct or indirect operating revenue of any kind or a flat rate and to consider things like the human, material and financial investments the publishers and press agencies made. Platforms must also base compensation on the contribution made by the publication’s political or general information, and the importance of the press publications to online public communication services.

In addition, Article 15 only states that it will not apply “in respect of the use of individual words or very short extracts of a press publication.” The French law, however, goes further and states that this exception does affect the rights provided by Article L.218-2, particularly where short extracts can substitute for the press publication or otherwise allows the reader to dispense with the need to refer to the publication.

No member state has formally adopted the provisions of Article 17 of the directive. In fact, in Poland v Parliament and Council, Poland has filed a legal challenge before the Court of Justice of the European Union, seeking to annul Article 17 in its entirety or at least the article’s sections that require platforms to make their “best efforts” to remove and prevent the future upload of allegedly infringing copyrighted material. The plea alleges that the provisions of this section of the directive infringe on the right to freedom of expression and information guaranteed by Article 11 of the Charter of the Fundamental Rights of the European Union.

Although implementation may vary across the European Union, as a practical matter, the most aggressive implementations may create a standard that will affect a company’s EU-wide practices and policies. While many details remain unknown, the directive has begun to affect U.S. companies that have customers and users in the EU.

Online service providers should monitor further implementations carefully and consider what their political allies can do to help shape the national laws. They must weigh the need to comply with restrictions and obligations against the importance of the European market or specific national markets. They should also study the logistical challenges of compliance and the possible licensing frameworks and terms.

Companies familiar and experienced with processes for qualifying for safe harbor under the Digital Millennium Copyright Act will find the challenges of the new European requirements more complex. Vigilant monitoring and preparation are advisable.

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.

© Fenwick & West LLP | Attorney Advertising

Written by:

Fenwick & West LLP

Fenwick & West LLP 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:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. 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. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our 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 are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy 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 our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.