Introduction

The trialogue on the new copyright directive (officially: 'Directive on copyright in the Digital Single Market') has come to an end. The European Council and the European Parliament have agreed on a text that will shape copyright for the next years to come. I'd like to focus on Article 13 of the proposed directive, which is often framed as introducing a 'upload filter'. If adopted, this article would significally alter the liability of online platforms for copyright infringements. Under the current regime in the E-Commerce Directive, these intermediaries can only be held liable once they have obtained knowledge of infringing materials. This has lead to notice-and-takedown regimes in which intermediaries only remove materials after they've been uploaded and flagged as infringing. Article 13 would require platforms like YouTube and Facebook to strike licensing deals with copyright owners and proactively remove unlicensed materials. Of course, the big tech companies Google and Facebook have voluntarily installed content identification systems that enables copyright owners to takedown content or share advertising revenues. Article 13 changes the power dynamics between copyright owners and these intermediaries though, because it would put copyright owners back in the driving seat as intermediaries must now obtain licenses from copyright owners.

On this page, I'll annotate Article 13 as it was agreed upon by the European Council and the European Parliament. Please keep in mind that this is a work in progress...

Article 13

Use of protected content by online content sharing service providers

  1. Member States shall provide that an online content sharing service provider performs an act of communication to the public or an act of making available to the public for the purposes of this Directive when it gives the public access to copyright protected works or other protected subject matter uploaded by its users.

    An online content sharing service provider shall therefore obtain an authorisation from the rightholders referred to in Article 3(1) and (2) of Directive 2001/29/EC, for instance by concluding a licencing agreement, in order to communicate or make available to the public works or other subject matter.

Providers of services such as not-for profit online encyclopedias, not-for profit educational and scientific repositories, open source software developing and sharing platforms, electronic communication service providers as defined in Directive 2018/1972 establishing the European Electronic Communication Code, online marketplaces and business-to business cloud services and cloud services which allow users to upload content for their own use shall not be considered online content sharing service providers within the meaning of this Directive.