Clarifying Safe Harbour Provision Applicability



The proposed Copyright Directive sets out to provide a much-needed interpretation of the current acquis, as it should apply to the copyright relevant acts of user uploaded content (UUC) services. Because this issue has proven to be unclear to national courts*, and cases across Europe have had varying and contradicting outcomes, the Commission set out to straighten the record on the matter. 


Aside from clarifying that UUC services communicate to the public, the Copyright Directive proposal tackles the application of the safe harbour provisions under Article 14 of the 2000/31/EC E-Commerce Directive (ECD) to copyright relevant acts made by these services.



The Commission clarifies that the ECD safe harbour provisions do not apply to UUC services that play an active role


These services are deemed to play an active role when for instance they promote or optimise the presentation of copyright protected works made available by the platform, regardless of the means used. Indeed, today's main access routes to creaive content, such as YouTube, SoundCloud or Vimeo, in many instances argue that they have no involvement in the provision of content on their platform because it is done by the algorithms that they have created.




A service can be a hosting provider while playing an active role. In that case, it should not be able to invoke safe harbour non liability defence for its acts


YouTube, SoundCloud, Dailymotion, etc., provide direct access through their indispensable role by knowing the consequences of their act. They organise, optimise and promote content in order to create one of the most sought content services for consumers.


There are available technologies on the market, which they already use to a certain extent, to identify the relevant works for exploitation on their platform. This, under current case law, is sufficient to establish liability for copyright relevant acts and therefore excludes these services from the scope of the safe harbour defence of Art 14 of E-Commerce Directive. 


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


*For instance, in the GEMA vs YouTube cases the German court said there was no act of communication to the public by the service, yet due to YouTube’s current situation in the market where it competed with services like Spotify, it had to have an effective stay-down obligation. Italian courts in cases against RTI and Break Media also asked for strict stay-down measures. In France, the courts in cases against Dailymotion considered the service a hosting provider subject to notice and take down only; although in some of the cases they considered the relevance of communication to the public by the service and full liability in some others (e.g. Google Videos). In the UK, the courts that decided on some of the website blocking cases against user-uploaded content websites established that the concerned services undertake a communication to the public and could not benefit from safe harbour.