Why article 13 causes so much displeasure

25 Mar, 2019 0 comments
Stefan Ensmann Stefan Ensmann

What is written in Article 17?

Article 17(1) demands, that online content-sharing service providers, which means the operators of YouTube, Facebook, Twitter, etc. are indicating, when they are providing public access to copyrightes material, which was uploaded before by their users. For this purpose the providers shall get the permission from the right holders, for example by signing a license agreement.

So now the providers are taken on the duty to ensure, that they have the rights to each content they are showing. This is already known for members of a performance rights organisation (PRO). One may remember a long dispute between the German GEMA and YouTube regarding the payout for artists, when the right for the managed music was revoked for a long period of time.

Basically this paragraph is relevant for private people as well, since every creator of a piece of work has the right to protection of his work, according to already applicable law. Does YouTube have to sign a license agreement with every creator, every PRO and every private person? Yes, seemingly, since no exceptions are stated in the proposal. Article 17(2) extends an already gained permission from a provider to relevant actions by its users. But this is only valid, if the users are not acting commercially or generate significant revenue (even though it is not stated, which amount of money is significant).

But what happens, if copyrightes material is uploaded and published on a platform like YouTube? Article 17(3) cancels the limitation of liability for the providers. Which means that every platform is now liable for every content that it makes available or that is uploaded by its users. However this paragraph is only limited to cases in the scope of the proposal, which means application of copyright.

Article 17(4) wants to clarify, at which point platforms are not liable for the contents anymore. A platform is not liable for unauthorized uploads if the operators can demonstrate that they

  1. made best efforts to obtain an authorization
  2. took all actions (according to high industry standards) to prevent the content being available, for which the right holders provided the platform with the necessary information
  3. ensure in any event that the access to the affected content is removed and that future uploads are prevented, as soon as the operators gained knowledge through the right holders.

Article 17(5) intends, that the availability of suitable and effective means and the the costs regarding those are taken into account when judging the fulfillment of the duties in 17(4) by a platform. This is extended to the size and type of a platform, user base, the type of uploaded content further, unnamend aspects (“[…] the following elements, among others […]“). 17(6) excludes platforms aged less than three years and with an annual turnover less than 10 Million Euros from the mean stated in a) and b) from Article 17(4). Platforms with at least 5 Million unique monthly users still need to prevent future uploads after a removal of copyrighted content. The other paragraphs of article 17 largely regulate formalities in the application of the proposal. This includes exceptions, in which copyrighted material may be uploaded (quotes, parodies, etc.), Systems for reports and complaints and that the removal of content should always be reviewed by a human.

However the first sentence of Article 17(8) is interesting: “The application of this Article shall now lead to any general monitoring obligation.” An in Article 17(10) it is specified, that the commission of the European Union needs to organize dialogues with the affected platforms and right holders after the Directive has entered force. During these conversations suitable means for the implementation shall be discussed, especially regarding the cooperation between platforms and right holders stated in Article 17(4).

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