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EU and US Copyright Law Diverge: EU Shifts Burden to Police For Copyright Infringement from Rights Holders to Online Platforms for User-Uploaded Content

  Amendments to the EU’s Copyright Directive’s Article 17, which require certain online platforms for user-uploaded content to conclude licensing agreements with the rights holders for the use of the copyright protected content, have been granted final approval by the European Council and, thus, are being sent to the EU’s member states for implementation into law within the following twenty-four months. 

  If an online platform does not obtain a license from the rights holder, the new rules will require it to make their best efforts to prevent unauthorized content from becoming available on its website.  While that “best efforts” obligation does not prescribe a particular type of technology for doing so, many critics have dubbed Article 17 as the “upload filter” amendment. 

  One of the main objectives of the amendment is to reinforce the negotiating position of creators and rights holders with respect to obtaining remuneration for use of their works by user-uploaded content platforms in the online environment, and to provide transparency rules with respect to the remuneration of authors and performers.  However, critics from the tech and social media industries complain that this shifting of the burden of policing for copyright infringement from the rights holder to the online platforms places too heavy a burden upon them. On the other hand, rights holders view it as relieving them from having to play an unending game of whack-a-mole through a notice and takedown procedure. Although, there are some exceptions. For example, content generated by users for the purpose of criticism, caricature, quotation and review, parody and pastiche (e.g., memes and gifs) must be permitted by all member states.

  This shift in the EU copyright law represents a dramatic departure from what was a fairly consistent scheme of treatment between the U.S. and EU.  In the U.S., pursuant to the Digital Millenium Copyright Act, the lion’s share of the burden will remain on the rights holders to identify the alleged infringers and, for each, follow a notice and takedown procedure.  In other words, rights holders in the U.S. will continue to play whack-a-mole in an effort to police and enforce their copyrights. 

  The new EU Rules also have implications with respect: out-of-commerce works; copies of works that have fallen into the public domain; and collective licensing. For the European Commission’s answers to frequently asked questions about the new rules see: http://europa.eu/rapid/press-release_MEMO-19-1849_en.htm.  You may also be interested in the EU Commission’s general overview of the new EU rules, at: https://ec.europa.eu/digital-single-market/sites/digital-agenda/files/newsroom/full_fact_43353.jpg

  As a U.S. law firm, TRAILBLAZER does not practice, or give advice as to, European Union law.  However, if you would like us to facilitate an introduction to European lawyer we would be happy to assist you.  Further, if you have questions or need assistance about the U.S. copyright laws and the Digital Millenium Copyright Act which governs the U.S. notice and takedown procedure, please do not hesitate to call upon us.