The Business Impact of the Directive

  

 

A stronger DSM for all businesses requires more legal clarity for services

 

Services that play an active role, like YouTube or SoundCloud, should not be able to claim safe harbour for copyright protected works. Although the law already specifies this, it does not do so clearly enough, which has resulted in contradictory and problematic national rulings. Recital 38 of the Copyright Directive proposal intends to offer a solution to this.

 

In addition to Recital 38's clarification, Article 13 of the Copyright Directive proposal states that user uploaded content (UUC) services that provide access to large amounts of works should cooperate with rights holders for technical tools to determine the use of content. This, regardless of whether they play an active role on the content.

 

 

 

 

More opportunities for businesses, more choice for consumers

 

The Copyright Directive proposal provides legal certainty and a level playing field for legitimate businesses that provide access to cultural content. It will make matters easier for new businesses to get on the market, creating more choice for consumers.

 

The services that are addressed in the proposal are either those who are not supposed to benefit from safe harbour in the first place or those that provide access to large amounts of works. In the former case, the proposal will finally create a level playing field for businesses that are actively providing access to protected works as their business model. In the latter case, internet giants that benefit immensely from protected works are expected to cooperate with rights holders for their mutual benefit.


 

Defending creators’ right to conduct business

 

The deployment of effective content recognition technologies will help facilitate the ability of creators to continue to exert their right to conduct a business by enabling them to protect and to receive equitable remuneration for their product: creative works.

 

Collaboration between rights holders and UUC platforms is a key element in addressing the transfer of value/value gap issue. Moreover it would bring a level playing field for legitimate online services vis-à-vis those self-proclaimed intermediaries, as well as healthier and better choices for consumers between more and newer services that fairly remunerate the creators whose works they enjoy.

 

 

The right to conduct business, no matter your size

 

A number of service providers already implement the sort of content recognition technologies referred to in Article 13. This currently occurs without causing any harm to the efficient functioning of the Internet and without prejudicing the legitimate interests of Internet users.

 

Inexpensive and effective technologies that can identify content as would be necessary to implement an adequate cooperation between platforms and rights holders are readily available. In fact, there are several companies that provide affordable bespoke solutions in this area (starting 500€/month), including some European start-ups.

 

The platforms for which the enhanced due diligence obligation applies are only required to take “appropriate and proportionate” measures. Moreover, the content recognition measures are limited purely to content identified as infringing or licensed by rights holders.

 

These provisions on the collaboration between rights holders and UUC platforms, together with the necessary clarifications are the absolute minimum to tackle the issue of transfer of value. They will help restore the balance in the online market by enabling the proper remuneration for creation and thereby ensuring its continued growth and future investment in talent.

 

  • For a further in-depth analysis of relevant CJEU cases and of the compatibility with the acquis communautaire, read more here.