On 27 July 2020, the Commission published a targeted consultation on co-operation between online platforms and rightsholders in implementing Article 17 of the Copyright Directive. This is an important step as Member States are required to implement the Copyright Directive by 6 June 2021. You can view our Copyright Directive tracker, which summarises legislative progress across the EU, here.

Article 17 seeks to address the “value gap” that creators see between paid-for subscription services and free, advertising-supported platforms which host user generated content (e.g. YouTube). It was the subject of extensive debate and lobbying during the Copyright Directive’s journey to publication in the Official Journal of the EU on 17 May 2019, and has been covered by MediaWrites previously here and here. The article clarifies that content-sharing online platforms are carrying out a “communication to the public” by making copyright works available, and are therefore required to make “best efforts” to obtain licences from rights-holders, or face liability for copyright infringement.

The aim of the consultation is to develop the Commission’s initial ideas for guidance on the application of Article 17, and will focus on co-operation between platforms and IP owners. The consultation is directed at those who have already participated in stakeholder dialogue – i.e. the representatives of rights holders, online content-sharing service providers, consumers, users and fundamental rights organisations. It asks for feedback on what the guidance should address in specific areas, including:

• the scope of services covered;
• the nature of the authorisation required from rights-holders;
• the efforts that digital platforms will be required to take in order to obtain a licence;
• the information required from rightsholders regarding the works that they do not want made available;
• the contents of take-down notices;
• the specific liability regime for new services;
• copyright exemptions and limitations for users of digital platforms; and
• dispute resolution mechanisms for service users.

Participants to the consultation may now submit their written views before the closing date on 10 September 2020, and these will be taken into consideration as the Commission prepares its guidance on Article 17. You can access the consultation here.