European Union (Copyright and Related Rights in the Digital Single Market) Regulations 2021, Online Content-Sharing Service Providers (Part 5)

Regulation 18 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 organises and promotes for profit-making purposes.

The definition does not include, among others, 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.

Regulation 19(2) provides that an online content-sharing service provider shall not perform an act of communication or making available to the public without first obtaining an authorisation from the rightholders, which may be obtained by means such as concluding a licensing agreement where those rightholders are willing to do so.

Regulation 19(3) provides that an authorisation obtained by the provider also covers acts carried out by users when those users are not acting on a commercial basis or where their activity does not generate significant revenues. Regulation 19(4)(a) provides that, when a provider performs such an act in accordance with the Regulations, the limitation of liability established in section 40 of the Copyright and Related Rights Act 2000 shall not apply to the situations covered by the Regulations.

Regulation 20(1) makes the provider liable for unauthorised acts of communication to the public if no authorisation is granted, unless it demonstrates that it made best efforts to obtain an authorisation, made best efforts to ensure the unavailability of specific works for which the rightholders have provided relevant and necessary information, and acted expeditiously on a sufficiently substantiated notice to disable access to or remove the notified works and made best efforts to prevent their future uploads.

Regulation 20(3) provides that a new provider whose services have been available to the public in the European Union for less than 3 years and whose annual turnover is below EUR 10 million shall only be obliged to comply with subparagraph (a) of paragraph (2) and to act expeditiously, upon receiving a sufficiently substantiated notice, to disable access to or remove the notified works.

Regulation 20(4) provides that where the average number of monthly unique visitors of such a new provider exceeds 5 million, calculated on the basis of the previous calendar year, it shall also demonstrate that it has made best efforts to prevent further uploads of the notified works for which the rightholders have provided relevant and necessary information.

Regulation 21(1) provides that the cooperation between a provider and a rightholder shall not result in the prevention of the availability of a work uploaded by users which does not infringe copyright and related rights, including where it is covered by an exception or limitation. Regulation 21(3) provides that the application of Part 5 shall not be construed as imposing any general monitoring obligation.

Regulation 22(1) requires a provider to give a rightholder, at his or her request, adequate information on the functioning of its practices with regard to the cooperation referred to in Regulation 21. Regulation 22(2) requires a provider that has concluded a licensing agreement with a rightholder to provide the rightholder, at his or her request, with sufficiently specific information on the use of content covered by the agreement, subject to paragraph (4).

Regulation 23(1) requires a provider to put in place an effective and expeditious complaint and redress mechanism that is available to users of its services in the event of disputes over the disabling of access to, or the removal of, uploaded works or other subject matter. Regulation 23(3) requires complaints to be processed without undue delay, with decisions to disable access to or remove uploaded content subject to human review.

Regulation 23(4) requires a provider to inform its users, in its terms and conditions, that they can use works and other subject matter under exceptions or limitations to copyright and related rights provided for in European Union law. Regulation 24 provides that, without prejudice to judicial remedies, disputes under Part 5 may be submitted to a mediator in accordance with the Mediation Act 2017 or, where appropriate, to an arbitrator in accordance with the Arbitration Act 2010.