This is the final installment in a three-part blog series on Article 17. Miss the first two blogs? Catch up on “The Issue” and “The Debate.”
Article 17 implementation is currently underway with EU member states adopting the Copyright Directive. France and Germany have both adopted their ordinances transposing Article 17, as have the Netherlands and Hungary. Each member state implements in its own way; some stay very close to the words of the Directive, like France, and others, like Germany, have more nuanced interpretations. As Article 17 takes effect starting this June we’re going to start seeing the impacts of the Directive on digital platforms, rightsholders, and users.
There isn’t much time left to understand this shift in copyright liability before it goes into effect. The official date for implementation is June 7, 2021, though not all member states may have passed their laws by the deadline or may not go into effect by the deadline (Article 17 will be in effect in Germany on August 1, 2021). In the last of our Article 17 overview blog series, we discuss how Article 17 will be implemented and enforced. Here’s a preview of what’s included in the FAQ of our free starter kit.
The Roll Out
How will Article 17 be enforced?
As a directive, Article 17 doesn’t have the power of law. Therefore, all 27 EU member states need to adapt their national laws to comply with the directive in a process called “transposition.”
The two largest EU member states – Germany and France – have adopted the Directive and Article 17 into law. Even though not all member states have implemented, platforms should be prepared for liability in the countries that have, and know that the remaining states will not be far behind.
Does this affect organizations outside the E.U.?
Yes, as long as their service is available to users in the E.U., they need to comply with the legislation. It doesn’t matter if the platform HQ is in the USA or any other country.
How does Article 17 shape the U.S. debate over Section 230 and the DMCA?
Just as the DMCA protects UGC platforms from liability over copyrighted content being illegally uploaded, §230 of the Communications Decency Act (CDA) provides similar protections for platforms when it comes to other forms of harmful content.
As legislators in Washington look for ways to reform §230 and the DMCA, Article 17 has certainly grabbed their attention. Additionally, many US-based UGC platform companies are multinationals with a large and profitable presence in Europe. We expect to see global changes in the way platforms operate.
What does Article 17 actually say?
The full directive is fairly compact; you can read a copy of it here to see exactly what Article 17 says.
What are so-called best efforts?
If the OCSSP can demonstrate that it has satisfied all three of these conditions, then it is shielded from liability for unauthorized acts of making available protected content on its website.
More specifically, 17(4) mentions best efforts to:
1) obtain authorization from the copyright owners;
2) ensure the unavailability of specific works for which the rightsholders have provided the OCSSPs with the relevant and necessary information and,
3) in any event, disable access to, and prevent future uploads of, works in accordance with point 2.
Are there exceptions from copyright?/ Is there anything similar to fair use in the EU?
Yes, users and creators can benefit from six mandatory copyright exceptions that need to be recognized in every EU country. They include quotation, criticism, review, caricature, parody, and pastiche.
Download our starter kit to dive deeper. We’ve included a summary, detailed FAQ, glossary, and compliance checklist for platforms.
Prepare for Article 17 with Pex
At Pex, we build products that identify and license the use of copyrighted material online to help social media platforms targeted by Article 17 attribute and compensate rightsholders, while providing a better experience for their creators. We include ALL compliance aspects of Article 17 in our groundbreaking product, Attribution Engine, which serves as licensing infrastructure for platforms and indemnifies them from Article 17’s requirements.
Interested in working with Pex? Contact our team at [email protected] for more information on how we can help you be prepared for Article 17.