The deadline for implementation of the new Directive by Member States, which came into force on 6 June 2019, was 7 June 2021. Ahead of this deadline, the Commission useful published guidance on Article 17 in the form of a Communication.

The Directive aims to modernise EU copyright rules and enable consumers and creators to make the most of the digital world, where music streaming services, video-on-demand platforms, satellite and IPTV, news aggregators and user-uploaded-content platforms have become the main gateways to access creative works and press articles. The Commission says that the new rules will stimulate the creation and dissemination of more high-value content and allow for more digital uses in core areas of society, while safeguarding freedom of expression and other fundamental rights.

The Directive provides for new rules to ensure fairer remuneration for creators and rightsholders, press publishers and journalists, in particular when their works are used online, and increases transparency in their relationships with online platforms. It also includes new guarantees to protect EU citizens’ freedom of expression online.

Article 17, entitled “Use of protected content by online content-sharing providers”, states that when implementing the Directive, Member States must provide that an online content-sharing service provider is making an “act of communication to the public” or an “act of making available to the public” when it provides access to the public to copyright-protected works uploaded by its users. Therefore, online content-sharing service providers need to obtain authorisation from rights holders for the content uploaded on their website. The limitation of liability for hosting, as set out in Article 14(1) of the E-Commerce Directive (2000/31/EC), is stated as not to apply.

If no authorisation is granted, online content-sharing service providers are liable for unauthorised acts of communication to the public, including making available to the public of any copyright-protected works unless they can show that they:

1. made best efforts to obtain authorisation; and
2. made best efforts to ensure the unavailability of specific works for which they have been given the necessary information by the rights holders; and, in any event,
3. acted expeditiously on receiving notice from the rights holders to prevent access to or to remove the content from their websites, and made best efforts to prevent future uploads.

The guidance provides practical measures on the main provisions of Article 17 and takes into account views gathered from stakeholders and Member States following meetings organised by the Commission to discuss cooperation between online content-sharing platforms and rights holders. To read the Commission’s press release in full and for access to the guidance, click here.