Digital content makers‘ do’s & don’ts in the Digital single market

The Directive (EU) 2017/790 on copyright and related rights in the Digital Single Market was adopted by the European Parliament on the 26^th of March 2019, in the context of harsh discussions about its true impact on the internet as we know it.

After a few months, the tensions are eased: it is now time to focus on what’s fact and what’s fiction.

A major shift

The massive change this directive will introduce concerns online content-sharing service providers (such as Youtube): their status will go from simple hosting platforms to service providers whose liability about the content published on their platform is full and unlimited.

Indeed, under the new directive, when a sharing platform’s user will upload copyright protected works on theses platforms, it will be considered that they perform an act of communication or an act of making available to the public of these works.

Thus, for this act to be lawful, the platforms will need to obtain the concerned right holders’ authorization, by concluding a licensing agreement for example.

What will be the consequences for digital content maker?

Under the new directive, if you publish, on your favorite platform, a digital creation of yours which contains copyright protected works (e.g.: music, pictures, movies extract, …) without the concerned right holder’s authorization, this platform will be held responsible for a copyright infringement, except if it can demonstrate that:

• it made the best efforts in order to obtain the right holder’s authorization and,
• it made the best efforts to ensure the unavailability of your creation on its website in addition to preventing any further publication of your creation and,
• that it acted expeditiously on the right holder’s notification of the copyright infringement caused by your creation.

Practically speaking, platforms will want to minimize the risks of being held liable of a copyright infringement: they will implement control mechanisms to prevent infringements, fast reaction procedures in case of infringement, and user policies aiming at preventing the publication of litigious creations.

Exceptions

The new text makes sure that, as a user of an online content sharing platform, you will be able to rely on the following copyright exceptions and limitations when publishing your digital content:

• quotation, criticism, review;
• use for the purpose of caricature, parody or pastiche.

This means that as long as you use copyrighted works in respect of one of these purposes, the concerned right holder will not be able to impede your creation’s publication.