Wednesday 26th September 2018

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View Commission's Position on Recital 37

EU Commission's Position

As adopted 14th September, 2016

Recital 37

The role of online content marketplaces

Over the last years, the functioning of the online content marketplace has gained in complexity. Online services providing access to copyright protected content uploaded by their users without the involvement of right holders have flourished and have become main sources of access to content online.

This affects rightholders’ possibilities to determine whether, and under which conditions, their work and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it.

View Council's Position on Recital 37

EU Council's Position

As adopted 25th May, 2018

Recital 37

The role of online content marketplaces

Over the last years, the functioning of the online content marketplace has gained in complexity. Online content sharing services providing access to a large amount of copyright-protected content uploaded by their users have developed and have become main sources of access to content online.

Legal uncertainty exists as to whether such services engage in copyright relevant acts and need to obtain authorisations from rightholders for the content uploaded by their users who do not hold the relevant rights in the uploaded content, without prejudice to the application of exceptions and limitations provided for in Union Law.

This situation affects rightholders’ possibilities to determine whether, and under which conditions, their content is used as well as their possibilities to get appropriate remuneration for it. It is therefore important to foster the development of the licensing market between rightholders and online content sharing service providers.

These licensing agreements should be fair and keep a reasonable balance for both parties. Rightholders should receive an appropriate reward for the use of their works or other subject matter.

EU Commission's Position

As adopted 14th September, 2016

View Council's Position on Recital 37

Recital 37

The role of online content marketplaces

Over the last years, the functioning of the online content marketplace has gained in complexity. Online services providing access to copyright protected content uploaded by their users without the involvement of right holders have flourished and have become main sources of access to content online.

This affects rightholders’ possibilities to determine whether, and under which conditions, their work and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it.

EU Council's Position

As adopted 25th May, 2018

View Commission's Position on Recital 37

Recital 37

The role of online content marketplaces

Over the last years, the functioning of the online content marketplace has gained in complexity. Online content sharing services providing access to a large amount of copyright-protected content uploaded by their users have developed and have become main sources of access to content online.

Legal uncertainty exists as to whether such services engage in copyright relevant acts and need to obtain authorisations from rightholders for the content uploaded by their users who do not hold the relevant rights in the uploaded content, without prejudice to the application of exceptions and limitations provided for in Union Law.

This situation affects rightholders’ possibilities to determine whether, and under which conditions, their content is used as well as their possibilities to get appropriate remuneration for it. It is therefore important to foster the development of the licensing market between rightholders and online content sharing service providers.

These licensing agreements should be fair and keep a reasonable balance for both parties. Rightholders should receive an appropriate reward for the use of their works or other subject matter.

EU Parliament's Position

As adopted 12th September, 2018

Update 14th September 2018: This proposal is the version adopted by the EU Parliament on 12th September 2018. Emboldened text denotes an amendment.

Recital 37

The role of online content marketplaces

Over the last years, the functioning of the online content market has gained in complexity. Online services providing access to copyright protected content uploaded by their users without the involvement of right holders have flourished and have become main sources of access to copyright protected content online.

Online services are means of providing wider access to cultural and creative works and offer great opportunities for cultural and creative industries to develop new business models.

However, although they allow for diversity and ease of access to content, they also generate challenges when copyright protected content is uploaded without prior authorisation from rightholders.

This affects rightholders’ possibilities to determine whether, and under which conditions, their work and other subject-matter are used as well as their possibilities to get an appropriate remuneration for it, since some user uploaded content services do not enter into licensing agreements on the basis that they claim to be covered by the “safe-harbour” exemption set out in Directive 2000/31/EC.

Recital 37a (new)

Definition of online content sharing service provider

Certain information society services, as part of their normal use, are designed to give access to the public to copyright protected content or other subject-matter uploaded by their users.

The definition of an online content sharing service provider under this Directive shall cover information society service providers one of the main purposes of which is to store and give access to the public or to stream significant amounts of copyright protected content uploaded / made available by its users, and that optimise content, and promote for profit making purposes, including amongst others displaying, tagging, curating, sequencing, the uploaded works or other subject-matter, irrespective of the means used therefor, and therefore act in an active way.

As a consequence, they cannot benefit from the liability exemption provided for in Article 14 of Directive 2000/31/EC.

The definition of online content sharing service providers under this Directive does not cover microenterprises and small sized enterprises within the meaning of Title I of the Annex to Commission Recommendation 2003/361/EC and service providers that act in a non-commercial purpose capacity such as online encyclopaedia, and providers of online services where the content is uploaded with the authorisation of all right holders concerned, such as educational or scientific repositories.

Providers of cloud services for individual use which do not provide direct access to the public, open source software developing platforms, and online market places whose main activity is online retail of physical goods, should not be considered online content sharing service providers within the meaning of this Directive.