SWD Impact assessment on the modernisation of EU copyright rules – options for the use of protected content by online services

Baseline

No policy intervention. This option would rely on the voluntary deployment of technologies by user uploaded content services, which will continue to apply their own terms and level of transparency as to the functioning of the technologies.

Rightholders will not support this option as they consider that the current legal framework needs to be clarified and that players on the market will generally not improve the efficiency and transparency of technical measures when used. Online service providers storing and giving access to user uploaded content will support this option as they consider that the legal framework is clear and that they are already taking voluntary measures.

Other content service providers are likely not to be in favour of this option as it maintains the imbalance on the market. Consumers will be in favour of this option as they do not see the need for a change to the status quo and will fear that any intervention may have a negative impact on the freedom of information/expression.

Option 1

Stakeholder dialogues between rightholders and online services which store and give access to large amounts of content uploaded by their users

Main elements:

• The Commission would launch stakeholder dialogues that would bring together rightholders and providers of user uploaded content services to encourage them to define best practices for the use of technologies such as content recognition technologies and to promote their use. It would aim at improving the capacity of rightholders to determine the conditions for the use of and remuneration for their content.
• The dialogues would focus on service providers which store and provide access to large amounts of copyright protected content uploaded by their users as, in view of the amount of content available and the size of their audience, they have an important impact on the online content market.
• Technology providers would be involved in the dialogue. Account would be taken of existing technologies, their availability, efficiency and costs for each contracting party in order to find a balanced approach. The best practices could also focus on the ways to ensure that the services (i) obtain the necessary data from rightholders to make the technologies work and (ii) are transparent towards rightholders in terms of the operation, characteristics and efficiency of the technologies used.
• Given the different dynamics in each sector (music, audiovisual, images), the dialogues would be conducted on a sector by sector basis

Due to the non-binding nature of this option, rights holders will oppose it as they will consider it would not improve the current situation to a sufficient degree. Online service providers giving access to user uploaded content may support it while arguing that they already implement on a voluntary basis the necessary technologies that allow rightholders to decide on the use of their content.

Other content service providers are likely to find this option insufficient. Consumers are likely to view the possible stakeholders’ dialogues as impacting negatively their freedom of expression (as it could result in a wider and more efficient deployment of content recognition technologies on the basis of industry agreements).

Option 2

An obligation on online services which store and give access to large amounts of content uploaded by their users to put in place appropriate technologies and to increase transparency vis-a-vis rightholders

Main elements:

• This option would establish an obligation on service providers which store and provide access to large amounts of copyright protected content to put in place measures, such as content identification technologies, to allow rightholders to determine better the conditions for the use of their content. The determination of what constitutes “large amounts of content” will need to be made on the basis of a combination of factors including the number of users and visitors and the amount of content uploaded over a certain period of time. These factors are independent from the size of the service provider itself, which can also be an SME. It is clear that online service providers may have very different services (a user uploaded content platform, their own channels, third party channels). This obligation would only apply to the user uploaded content services to the extent that the content is copyright protected.
• These services will be targeted because they have become important sources of access to content online and also in view of their role in giving access to the public to works and other protected subject matter, requiring the conclusion of licensing agreements with rightholders.
• Cooperation with rightholders will be required for the functioning of the measures, such as content identification technologies. Rightholders should provide the data that are necessary for the services to identify the content whereas the services would be obliged to provide adequate information to rightholders on the deployment and functioning of the technologies. This could, for instance, include information on the type of technologies used, periods of unavailability (e.g. due to maintenance), plans for further improvements, success rates of the technologies deployed for identifying content and information on possible reasons for failures of identification.
• In order to safeguard end users’ rights, the services will be required to provide for procedures that enable users to contest situations where the application of the technology would limit the uploads of content in an unjustified manner.
• The above obligations will be without prejudice to liability regimes applicable to copyright infringements and the application of Article 14 ECD. In particular, with regard to services that are covered by Article 14 ECD, the obligation to put in place content identification technologies would not take away the safe harbour provided that the conditions of Article 14 are fulfilled. The notice and takedown regime will continue to apply for hosting service providers covered by Article 14 with respect to content not covered by agreements or in cases where the content is not properly identified.
• Member States would be required to facilitate cooperation between service providers and rightholders where appropriate, notably in cases where no individual agreement is reached between the parties on appropriate measures to be put in place by the services.

Rightholders may support this option if it establishes an obligation on service providers to take effective measures that improve the current situation, and provided there is sufficient clarity as regards the notion of communication to the public.

Online service providers storing and giving access to large amounts of user uploaded content are likely to oppose this option, including those that already use the technologies – as they would want their initiatives to remain voluntary. They will also argue that the intervention would counter the freedom of expression and freedom to conduct business.

Other content service providers are likely to support this option if it improves the level playing field on the online content market. Consumers are likely to argue that this option will have a negative impact on their freedom of expression/information.