Navigating Copyright Liability for Online Platforms: Understanding Due Diligence and Potential Costs
Online content sharing service providers operate in a complex legal landscape, particularly concerning copyright. These platforms, which allow users to upload and share content, are often conduits for copyrighted material, sometimes without proper authorization. Understanding the nuances of liability in these situations is crucial, especially for new and smaller service providers.
The directive aims to establish a specific liability mechanism tailored for these online content-sharing services, addressing situations where explicit authorization for content use is absent. This framework is designed to function without undermining national legal remedies for copyright infringement or the authority of national courts and administrative bodies to issue injunctions as per Union law. Notably, for newer service providers—those with an annual turnover below EUR 10 million and fewer than 5 million average monthly unique visitors within the Union—the established system should not impinge upon the availability of remedies under both Union and national law.
In scenarios lacking explicit authorization from copyright holders, service providers are expected to undertake significant efforts, adhering to high industry standards of professional diligence. This involves proactively working to prevent the availability of unauthorized works and other protected content, as identified by relevant rights holders, on their platforms. To facilitate this, rights holders should furnish service providers with pertinent and necessary information, considering factors such as the number of rights holders and the nature of their works.
It’s critical to emphasize that measures taken by online content sharing service providers, in collaboration with rights holders, should not inadvertently prevent the availability of non-infringing content. This includes uses of copyrighted material covered by licensing agreements or exceptions and limitations to copyright. The intent is to avoid impacting users who legitimately upload and access information on these services. Furthermore, the obligations stipulated in this directive should not lead to Member States imposing a general monitoring obligation on service providers.
Assessing whether a service provider has demonstrated “best efforts” in accordance with high industry standards involves considering whether they have taken all steps a diligent operator would take to prevent unauthorized works or other subject matter from being available on their website. This assessment takes into account industry best practices, the effectiveness of the measures implemented in light of all relevant factors and developments, and the principle of proportionality. Elements considered in this evaluation include the service’s size, the evolving state of the art in content protection technologies, and the costs associated with these technologies relative to different types of content. Different types of content and associated costs may necessitate varied yet proportionate approaches to preventing unauthorized access. It’s acknowledged that in certain instances, preventing unauthorized content may only be feasible upon notification from rights holders.
All measures undertaken by online content sharing service providers must be effective in achieving their objectives but must not exceed what is necessary to prevent and stop the availability of unauthorized works. Should unauthorized works become available despite diligent efforts in cooperation with rights holders, as mandated by this directive, these service providers may still be held liable. Liability would then pertain to specific works for which they received relevant and necessary information from rights holders, unless they can demonstrate they have indeed made their best efforts according to high industry standards.
Even when best efforts have been made, and regardless of whether rights holders provided prior relevant information, online content sharing service providers can be held liable for unauthorized acts of communication to the public if, upon receiving a sufficiently substantiated notice, they fail to act expeditiously to remove or disable access to the notified works. Moreover, liability extends to situations where service providers fail to demonstrate they made best efforts to prevent future uploads of specific unauthorized works, based on relevant information provided by rights holders for this purpose.
Conversely, if rights holders do not provide the necessary information about their specific works, or do not issue a notice regarding unauthorized content, online content sharing service providers cannot be expected to perform “best efforts” in preventing the availability of such unidentified unauthorized content. Consequently, in these scenarios, they should not be held liable for unauthorized acts related to making these unidentified works available to the public. This nuanced framework seeks to balance the rights of copyright holders with the operational realities of online platforms, encouraging proactive measures while acknowledging the limitations and costs involved in completely preventing copyright infringement online. While the text does not explicitly mention “790 Euro”, understanding these liability frameworks is crucial for online platforms to avoid potential financial repercussions, which could easily exceed such an amount depending on the scale and nature of any infringement.