DSM Directive, Article 17(1), (3), (4) and (6) (Authorization, liability conditions and notice-and-stay-down for online content-sharing services)

The Directive binds the Member States, which had to bring into force the laws, regulations and administrative provisions necessary to comply with it by 7 June 2021.

Article 2(6) defines an online content-sharing service provider as a provider of an information society service of which the 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 organizes and promotes for profit-making purposes.

The definition excludes not-for-profit online encyclopedias, not-for-profit educational and scientific repositories, open source software-developing and sharing platforms, providers of electronic communications services, online marketplaces, business-to-business cloud services and cloud services that allow users to upload content for their own use.

Article 17(1) provides that an online content-sharing service provider performs an act of communication to the public or an act of making available to the public when it gives the public access to copyright-protected works or other protected subject matter uploaded by its users.

Article 17(1) therefore requires such a provider to obtain an authorization from the rightholders, for instance by concluding a licensing agreement, in order to communicate to the public or make available to the public works or other subject matter.

Article 17(2) provides that an authorization obtained by such a provider also covers acts carried out by users of the services falling within the scope of Article 3 of Directive 2001/29/EC when they are not acting on a commercial basis or where their activity does not generate significant revenues.

Article 17(3) provides that the limitation of liability established in Article 14(1) of Directive 2000/31/EC does not apply to the situations covered by Article 17, without affecting its possible application to those service providers for purposes falling outside the scope of the Directive. Article 89(2) of Regulation (EU) 2022/2065 construes references to Articles 12 to 15 of Directive 2000/31/EC as references to Articles 4, 5, 6 and 8 of that Regulation, respectively.

Article 17(4) provides that, if no authorization is granted, an online content-sharing service provider is liable for unauthorized acts of communication to the public, including making available to the public, of copyright-protected works and other subject matter, unless it demonstrates the matters in its points (a) to (c).

Points (a) and (b) require best efforts to obtain an authorization and, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information.

Point (c) requires the provider, in any event, to act expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from its website, the notified works or other subject matter, and to make best efforts to prevent their future uploads in accordance with point (b).

Article 8(2) of Directive 2001/29/EC requires each Member State to take the measures necessary to ensure that rightholders whose interests are affected by an infringing activity carried out on its territory can bring an action for damages and/or apply for an injunction.

Article 17(5) provides that, in determining whether the provider has complied with Article 17(4) and in light of the principle of proportionality, the type, audience and size of the service, the type of works uploaded by its users, and the availability and cost of suitable and effective means are among the elements taken into account.

Article 17(6) applies a lighter regime to new online content-sharing service providers the services of which have been available to the public in the Union for less than three years and which have an annual turnover below a ceiling the paragraph states in euros.

For those providers the conditions under Article 17(4) are limited to compliance with point (a) and to acting expeditiously, upon receiving a sufficiently substantiated notice, to disable access to the notified works or other subject matter or to remove them from their websites.

Where the average number of monthly unique visitors of such a provider, calculated on the basis of the previous calendar year, exceeds the level the paragraph states, it must also demonstrate that it has made best efforts to prevent further uploads of the notified works and other subject matter for which the rightholders have provided relevant and necessary information.