At the end of August 2019, the EU Commission announced the commencement of a stakeholder dialogue process on the application of Article 17 of the Directive on Copyright in the Digital Single Market (the ‘DSM Directive’). This is the first step towards Commission guidance being issued on the application of this controversial article.

What is Article 17?

Article 17 was perhaps the most contentious of the articles in this new Directive, fuelling many years of intense lobbying. In short, Article 17 provides that certain online platforms perform an act of communication to the public or an act of making available to the public (i.e. they infringe a rightholder’s copyright) when they give access to large amounts of copyright-protected works or other subject matter uploaded by their users.

Aimed at online companies such as YouTube and Facebook, companies engaged in these acts can no longer rely on the safe harbour provisions of a previous directive. In absence of having a licence from rightholders, online platforms must show that they have taken certain actions to avoid being liable for copyright infringement, for example using “best efforts to ensure the unavailability of specific works…for which rightholders have provided the service providers with the relevant and necessary information”.

Despite its rocky road to ratification, including several significant rounds of redrafting and seven Member States seeking to block its passing at the final stage, the DSM Directive was ratified on 17 April 2019. However, its final draft still left many questions unresolved: How can a platform show that it has used “best efforts to ensure the unavailability of specific works”? Does this require the implementation of filtering mechanisms or content recognition technologies? Should this be implemented upon the upload of the content or must it be done continuously? What information must rightholders provide and when? What constitutes “large” amounts of copyright-protected content? Knowing that Article 17 is aimed at YouTube whose users watch one billion hours of content every day, is anything significantly less than this – even in the thousands – not to be considered large?

Why are these dialogues taking place?

Article 17(10) provided that the Commission shall organise stakeholder dialogues “to discuss best practices for cooperation between online content-sharing service providers  and rightholders”. Taking into account the results of these dialogues, the Commission is to issue guidance on the application of Article 17. It is hoped that this guidance will provide some much-needed clarity to online companies who currently remain uncertain as to whether they are caught by Article 17 and/or what practices they might need to put in place.

What and when are the dialogues?

The Commission states:

“The objective of the dialogue will be to hear stakeholders’ views and to discuss possible practical solutions for the application of Article 17, including actions to be taken by online content-sharing service providers with regard to unauthorised content, taking into account the interest of all relevant parties and the safeguards for users”.

The first meeting will be held in Brussels on 15 October 2019. The objective of this first meeting will be “to start mapping out existing practices related to the use of copyright-protected content by [online platforms], as well as to gather user experiences”.

Can I participate in the dialogue?

The Commission invites relevant representative organisations of stakeholders to express their interest in participation by filling out an online form that can be found here. This must be submitted no later than 18 September 2019.

In particular, the Commission invites EU level representatives of the following to attend:

• Rightholders;
• Online content-sharing service providers;
• Consumers;
• Users; and
• Fundamental rights organisations.

Up to 80 individual representatives will be invited to attend the meetings. More than one seat might be provided to an organisation depending on its composition and representativeness. The Commission has published the criteria it will apply in selecting participants which should be taken into account when filling out the online form. This can be found here.

For more information, see the Commission’s press release here: https://ec.europa.eu/digital-single-market/en/news/organisation-stakeholder-dialogue-application-article-17-directive-copyright-digital-single.