What should be considered as “best efforts” to prevent the availability of copyright-protected material?
After intense years of discussions, European Union Member States are now implementing the EU’s new Copyright Directive. One of the key concerns from the content industry is how online content-sharing service providers (OCSSPs) are going to bring down unauthorised materials.
The Directive stipulates that OCSSPs should make their “best efforts in accordance with high industry standards of professional diligence to avoid the availability on their services of” copyright-protected material. In other words, if copyright-protected content would be available on an online platform, the OCSSP wouldn’t be liable in light of these ‘best efforts’. The concept of ‘best efforts’ has a dual dimension: On the one hand, preventing the sharing of unauthorised content and, on the other, when certain content has been removed on notification of a beneficiary, preventing it from being uploaded again in the future.
Today, the concept of ‘best efforts’ still raises a lot of questions. The European Commission might clarify the situation with its guidance on the application of OCSSPs’ liability regime (Article 17). Indeed, this document should bring some technical and practical clarifications, helping the Member States with their implementation of the Directive. However, it won’t be a binding text.
France is one of the first Member States to have started the transposition process. Its High Authority for the Dissemination of Works and the Protection of Rights on the Internet (HADOPI) published a report on content recognition tools, in light of the new EU Copyright Directive. The report mentions that ‘best efforts’ should “be defined not on the basis of a theoretical approach, but on the basis of the existing state of the art, referring to the most efficient developments. It does not prescribe any particular technology, but it makes the performance of existing technologies and the measures implemented by relevant platforms a crucial benchmark for defining the liability regime to be applied”. The objective is to have a future-proof and tailored-to-content approach.
To assess the ‘best efforts’, the French report stresses the principle of proportionality, suggesting to take into consideration “factors such as the size of the service, the type of protected works and subject matter made available, the availability and cost of measures”. Depending on the Member States’ requirements, the concept of ‘best practices’ could be extremely onerous and resource-demanding. For instance, YouTube holds licensing agreements with music rightholders all over the world, including major record labels and virtually every publishing society in Europe, and provides a top-of-the-line suite of copyright management tools. Its terms of licensing and protection of copyright are setting the bar for ‘best efforts’ quite high, yet not all other platforms can meet this standard. The criteria setting the frame for ‘best efforts’ need to be proportionate, to not become a barrier to entry and harm small companies’ ability to scale up in Europe.
The Directive could lead to a risk where the action online services would have to take to avoid liability for a massive volume of content is the restriction of lawful content when infringement cannot clearly be determined. Algorithms used to monitor content on platforms cannot contextualize to determine whether the content was lawfully uploaded under one of the exceptions listed, and the Directive requires platforms to err on the side of removing content. OCSSPs cannot only and fully rely on today’s technology, but these tools are crucial to effectively limit the presence of unlawful copyright-protected content online. To have a well-functioning liability regime, mitigation measures are absolutely necessary.
It is crucial to have strong cooperation between rightholders and OCSSPs to have a functional copyright system. Rightholders should provide robust and detailed rights information (using standard formats and fingerprint technology where applicable) to facilitate efforts to limit the availability of potentially infringing content. Article 17 aims to facilitate an efficient marketplace, not to force rightholders or services into a particular business model.
Last but not least, the ‘best efforts’ that should be put in place by platforms are a means to an end, but not an end in itself. Platforms are required to “make their best efforts to obtain authorisations, particularly from rightholders whose content they offer to the public the most, and without refusing to enter negotiations with the rightholders who request it”. The OCSSPs and rightholders should together try to reach a deal. However, “in order to operate without incurring liability for unauthorised content, platforms are not required to hold authorisations for all the content to which they offer access”.
Overall, a robust framework must include protections for online intermediaries as well as flexible limitations and exceptions to copyright that are necessary for the development of next-generation technologies. We encourage the Member States to have a consistent interpretation of what can constitute the ‘best efforts’ to avoid fragmentation. We would recommend a proportional goal-oriented approach based on the objective to ensure the unavailability of copyright-protected content, without favoring any technology.