We reported back in May 2019 (see our blog – It's official! New Copyright Directive 2019/790) that the new Copyright Directive had been published in the Official Journal, meaning that Member States now have until 7 June 2021 to implement the new law (and it seems that despite the uncertainty surrounding Brexit, the view among lawyers and industry representatives is that the UK should still implement the Directive). We have also blogged extensively on the controversy that Article 17 of the Directive has caused. This is the clause that aims to make online content sharing service providers, (the likes of YouTube and Facebook of the online world) liable for infringing content uploaded by users onto their platforms. Article 17 has been heavily criticised for being too onerous on online platforms and for potentially stifling the free flow of information and the fundamental freedoms of internet users (such as freedom of expression). However, there is perhaps a saving grace in paragraph 10 of Article 17 which requires the EU Commission to cooperate with Member States, to 'organise stakeholder dialogues to discuss best practices' as to how this provision will operate in practice.
We can now report that earlier this month, the EU Commission opened the stakeholder dialogue process required by Article 17. As stated by the European Commission, 'the objective of the dialogue will be to hear stakeholders' views and to discuss possible practical solutions for the application of Article 17, including actions to be taken by online content-sharing service providers with regard to unauthorised content, taking into account the interests of all relevant parties and the safeguards for users'. The idea is that the outcome of these discussions will then feed into the guidance the EU Commission will publish on the application of Article 17.
Quick re-cap on Article 17
Platforms caught by Article 17 will automatically be considered to be carrying out 'acts of communication to the public or making available to the public' when they give the public access to copyright-protected content uploaded by users, and therefore require authorisation from the relevant content owners. Where no licensing agreements have been agreed with rightsholders, in order to avoid liability, online platforms will need to fulfil the following (paragraph 4 of Article 17): (i) make best efforts to obtain an authorisation, (ii) make best efforts to ensure the unavailability of unauthorised content regarding which rightholders have provided necessary and relevant information and (iii) act expeditiously to remove any unauthorised content following a notice received and make also their best efforts to prevent future uploads. There has been much criticism that the new Directive lacks substance and that some of the provisions are wordy and nebulous, especially paragraph 4 of Article 17, for example, what exactly is meant by 'best efforts'? It is therefore reassuring to have paragraph 10 contained in Article 17, which forces interested parties, Member States and the EU Commission to come together to work out how best to implement this provision in practical terms and to find the right balance to address the various competing interests.
Relevant representative organisations of stakeholders (e.g. rightsholders, online content-sharing service providers, consumers, users and fundamental rights organisations) were invited to express their interest in participating in the stakeholder dialogue by 18 September 2019. The EU Commission indicated that it will be able to invite up to 80 individual representatives of stakeholder organisations to the dialogue meetings and representatives from the EU Member States will also attend. The Commission will hold the first meeting of the stakeholder dialogues on 15 October 2019 in Brussels. The objective of that meeting will be 'to start mapping out existing practices related to the use of copyright-protected content by online content-sharing service providers in cooperation with rightsholders as well as to gather user experiences'. It is then anticipated that further meetings will be organised until the end of 2019 or early 2020.
There are high hopes for these stakeholder dialogue meetings to ultimately find the right balance to address the various interests of copyright owners and online platforms and their users. Hopefully the different rights and interests will be suitably represented in these meetings and a practical solution found so as to allow the free flowing of content on the internet, whilst at the same time, ensuring that the work of content creators is adequately protected and that they are sufficiently rewarded for that content. It will also need to be as future-proof as possible to allow for the fast pace of technological advancements. It will be interesting to follow the progress of these meetings and to see the final guidance published by the Commission, but there is a long way to go before we reach that point! We will of course keep you updated as and when we hear news and progress.