Article 13 applies to 'online content service providers
Article 2(5) of the new directive defines an online content service provider as 'a provider of an information society service whose 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 organises and promotes for profit-making purposes
This definition imports a key concept in EU internet law into the definition. The 'online content service provider' mentioned in Article 13 needs to be an 'information society service provider
'. This provider offers a service at a distance, by electronic means and at the individual request of a recipient of services (see directive 2015/1535). Such service is also 'normally provided for remuneration'. There thus is a double reference to the income that must be generated by the service provider covered by Article 13. Such a provider must provide a service that is provided for remuneration - otherwise the service provider is not an 'information society service provider'. And per the definition in Article 2(5), the service provider must 'organise' and 'promote' the user-uploaded and copyrighted materials for profit-making purposes
. Although users do no pay for services like YouTube and Facebook and these services are not remunerated directly, the definition of an information society service providers also covers services that are remunerated indirectly - e.g. by advertising (recital 18 E-Commerce Directive
, par. 30).
The online content service provider must have as its main purpose, or one of its main purposes 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 organises and promotes for profit-making purposes.' There are several elements in this definition. A key question that will need to be answered is whether there elements are subjective or objective. For instance, should the service provider only have the purpose
to provide access to large amounts of copyright works, or should it actually provide such access? Based on the wording of Article 2, a subjective criterion seems to be introduced. However, the recitals appear to indicate that these elements are objective (see e.g. recital 37b).
Firstly, the service provider must store
and give the public access
to copyrighted materials (or materials containing other protected subject-matter). Just storing copyrighted materials - as may be done by cloud storage providers like Dropbox - is not enough (also recital 37a). These materials must also made available to the public, which - if CJEU copyright case law applies here - is an 'indeterminate number of potential viewers' and implies 'a fairly large number of people' having access (e.g. ECLI:EU:C:2017:456
, par. 27).
Secondly, the amount of materials must be large
. Whether the amount of materials is 'large' is determined on 'a case-by-case basis
' by looking at 'combination of elements, such as the audience of the service and the number of files of copyright-protected content uploaded by the users of the services
' (recital 37b). It's not clear whether this criterion relates to an absolute (the total amount of copyrighted materials on the platform must just be large) or a relative amount of copyrighted materials (a large part of the materials available on the platform must be copyright). A relative standard would enable the criterion to apply also to smaller platforms. Another, somewhat inappropriate, element to be considered is the 'audience of the service'. Of course the number of users having access (audience?) tells little about the the amount of copyrighted works that is made available on the platform. Consideration of this element may lead to an interpretation where service providers offering larger
amounts to copyrighted materials to a relatively small amount of users are not covered by Article 13.
Thirdly, the copyrighted materials must be uploaded by the users of the service. This element brings in services providers that are typically referred to as platforms. They host and 'give access to' to materials that are shared by their users. If the service provider also offer some of its own original content - such as YouTube, as part of its YouTube Premium plan - the service provider may still be covered by Article 13, since the service provider then still has as its 'main purpose' or 'one of its main purposes' that it stores and gives access to materials uploaded by users.