The Copyright in the Digital Single Market (CDSM) Directive lays down additional provisions harmonizing EU copyright law, particularly with regards to digital and cross-border uses of protected subject matter.
Of particular interest for internet intermediary liability issues is the new legal regime for ‘online content-sharing service providers’ (OCSSP). An OCSSP is defined as “a provider of an information society service of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organizes and promotes for profit-making purposes.” Some specific types of providers, though, are left out of the scope for the purposes of the Directive, namely “not-for-profit online encyclopedias, not-for-profit educational and scientific repositories, open source software-developing and-sharing platforms, providers of electronic communications services as defined in Directive (EU) 2018/1972, online marketplaces, business-to-business cloud services and cloud services that allow users to upload content for their own use.”
The OCSSPs legal regime is set forth in Art. 17. In essence, the article determines that an OCSSP performs an act of communication to the public, or an act of making available to the public, when it gives the public access to protected subject matter uploaded by its users. As a result, it must obtain an authorization from right holders (for instance, by means of a license) to give access to such content. The Directive establishes that the OCSSP will not be able to rely on the hosting safe harbor provided by the e-Commerce Directive (currently provided by the Digital Services Act) to avoid copyright liability stemming from carrying out such communication (or making available) to the public. In the absence of an authorization, the OCSSP will incur in liability for direct copyright infringement, unless it fulfills a number of conditions, in what may be understood as a new, narrowly tailored, safe harbor. Specifically, OCSSPs must demonstrate that they have: “(a) made best efforts to obtain an authorization, and (b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the right holders have provided the service providers with the relevant and necessary information; and in any event (c) acted expeditiously, upon receiving a sufficiently substantiated notice from the right holders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b).” A number of safeguards seek to ensure cooperation from right holders, proportionality, respect for legitimate uses – including the exceptions or limitations for quotation, criticism, review; and use for the purposes of caricature, parody of pastiche – and the availability of complaint and redress mechanisms. The Directive also states that the application of Art. 17 shall not shall not lead to any general monitoring obligation.
Other relevant provisions include an exception or limitation for text and data mining (Art. 4), measures to facilitate collective licensing (Art. 12), a negotiation mechanism for parties facing difficulties to the licensing rights to make available audiovisual works on video-on-demand services (Art. 13), or the new related right granted to press publishers concerning online uses of their publications (Art. 15).