However, it was once again a rather close vote as regards Articles 11 and 13 of the draft directive, which concern the new neighbouring right for press publishers and the tightening of the liability scheme for online content sharing providers. In both cases close to 300 MEPs voted against the proposed language. However, in the end we can say that the Parliament is, by way of parliamentary majority, in favour of such a neighbouring right as well as of a stricter regime for content sharing platforms. Rapporteur Voss has ultimately succeeded in winning a majority for his ideas.
As regards the new right for press publishers, the details of such right are now set. There are no big surprises. Article 11(2a) states that the respective right shall not extend to mere hyperlinks, which are accompanied by individual words. Also, private and non-commercial uses (e.g. by bloggers) will not infringe the new right. This makes sense. However, the core question was whether or not to create such right in general. Here, those who have been lobbying in favour of such a right have prevailed. It may also be assumed that the neighbouring right will survive the trilogue negotiations given that all three institutions are supporting the idea of such right. The final details will be carved out without much controversy.
It should be added that a similar right is set out in Article 12a of the draft directive with sports event organizers being awarded the respective neighbouring right. Such right was introduced into the discussion only rather late in the process.
Article 13 has become a truly complex provision. However, the starting point is the definition of an
“online content sharing service provider” as set out in Article 2(4a) of the draft copyright directive. According to this provision, ‘online content sharing service provider’ means a provider of an information society service one of the main purposes of which is to store and give access to the public to a significant amount of copyright protected works or other protected subject matter uploaded by its users, which the service optimises and promotes for profit making purposes. Microenterprises and small-sized enterprises within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC and services acting in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all right holders concerned, such as educational or scientific repositories, shall not be considered online content sharing service providers within the meaning of this Directive. Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this Directive;"
The sheer length of the definition already indicates the complexity of the matter. Provided that a service provider fulfills the respective criteria, he is deemed to perform an act of communicating to the public regardless of whether the criteria developed by the CJEU in respect to Article 3(1) of the InfoSoc Directive 2001/29 are met. Of course, the case law has influenced the definition in Article 2(4a). Still, if the wording were to survive the trilogue negotiations, we would have two different definitions of what forms an act of communicating to the public.
What needs to be reflected upon critically, is the question of whether the numerous limitations and carve-outs (see underlined text) we find in the definition of what is to be deemed an ‘online content sharing service provider’ do really resonate. At first glance, it seems that various groups have been more successful than others in their lobbying efforts. However, the future will prove whether the definition allows for a balanced application of Article 13.
There is no explicit reference to the safe harbour provision in Articles 12 to 15 of the eCommerce Directive 2000/31. However, when determining that online content sharing service providers by definition perform an act of communicating to the public, such provider cannot benefit from the safe harbour, as it does not apply in the first place. Article 13(2) holds the actual liability clause. To avoid such liability, some sort of monitoring and filtering will become necessary. This is what the group led by Julia Reda always wanted to avoid. It is a question still to be answered whether the “cooperate in good faith” approach set out in Article 13(3) will be effective to prevent the spill-over effect of lawful content being taken offline in order to stay away from liability.
All in all, we expect quite a bit of discussion as regards Article 13 and its way through the trilogue discussions.
Authored by Nils Rauer