EU Council's Position
As adopted 25th May, 2018
View Commission's Position on Recital 38e
Online content sharing service providers and the application of measures to prevent the availability of unauthorised works
The measures taken by the online content sharing service providers to prevent the availability of unauthorised works or other subject-matter should be effective but remain proportionate, in particular with regard to the size of the online content sharing service provider.
While this Directive is expected to foster the development of effective technologies on the market, the availability of the measures may differ according to the type of content for which the measures are applied.
Having regard to the technological developments in line with industry best practices, those measures should consequently ensure a level of efficiency appropriate to the amount and the type of works or other subject matter uploaded by the users of the services.
For the purposes of assessing the proportionality of measures to be taken by the online content sharing service providers, the state of the art of existing technologies for the different types of content as well as the size of the services should be taken into account notably whether they are small and micro enterprises.
Different measures may be appropriate and proportionate per type of content and it is therefore not excluded that in some cases unauthorised content may only be avoided upon notification of rightholders. The measures should be proportionate in order to avoid imposing disproportionately complicated or costly obligations on certain online content sharing service providers, taking into account notably their small size.
In particular, small and micro enterprises as defined in Title I of the Annex to Commission Recommendation 2003/361/EC, should be expected to be subject to less burdensome obligations than larger service providers.
Therefore, taking into account the state of the art and the availability of technologies and their costs, in specific cases it may not be proportionate to expect small and micro enterprises to apply preventive measures and that therefore in such cases these enterprises should only be expected to expeditiously remove specific unauthorised works and other subject matter upon notification by rightholders.