Article 17
Use of protected content by online content-sharing service providers
1. Member States shall provide that an online content-sharing service provider
performs an act of communication to the public or an act of making available to
the public for the purposes of this Directive when it gives the public access to
copyright-protected works or other protected subject matter uploaded by its users.
An online content-sharing service provider shall therefore obtain an authorisation
from the rightholders referred to in Article 3(1) and (2) of Directive 2001/29/EC,
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.
2. Member States shall provide that, where an online content-sharing service provider
obtains an authorisation, for instance by concluding a licensing agreement, that
authorisation shall also cover 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.
3. When an online content-sharing service provider performs an act of
communication to the public or an act of making available to the public under the
conditions laid down in this Directive, the limitation of liability established in
Article 14(1) of Directive 2000/31/EC shall not apply to the situations covered by
this Article.
The first subparagraph of this paragraph shall not affect the possible application
of Article 14(1) of Directive 2000/31/EC to those service providers for purposes
falling outside the scope of this Directive.
4. If no authorisation is granted, online content-sharing service providers shall be
liable for unauthorised acts of communication to the public, including making
available to the public, of copyright-protected works and other subject matter,
unless the service providers demonstrate that they have:
(a) made best efforts to obtain an authorisation, and
(b) made, 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; and in any event
(c) acted expeditiously, upon receiving a sufficiently substantiated notice from
the rightholders, to disable access to, or to remove from, their websites the
notified works or other subject matter, and made best efforts to prevent their
future uploads in accordance with point (b).
5. In determining whether the service provider has complied with its obligations
under paragraph 4, and in light of the principle of proportionality, the following
elements, among others, shall be taken into account:
(a) the type, the audience and the size of the service and the type of works or
other subject matter uploaded by the users of the service; and
(b) the availability of suitable and effective means and their cost for service
providers.
6. Member States shall provide that, in respect of 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 EUR 10 million,
calculated in accordance with Commission Recommendation 2003/361/EC20, the
conditions under the liability regime set out in paragraph 4 are limited to
compliance with point (a) of paragraph 4 and to acting expeditiously, upon
receiving a sufficiently substantiated notice, to disable access to the notified works
or other subject matter or to remove those works or other subject matter from their
websites .
Where the average number of monthly unique visitors of such service providers
exceeds 5 million, calculated on the basis of the previous calendar year, they shall
also demonstrate that they have 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.
20 Commission Recommendation of 6 May 2003 concerning the definition of micro,
small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).
7. The cooperation between online content-sharing service providers and
rightholders shall not result in the prevention of the availability of works or other
subject matter uploaded by users, which do not infringe copyright and related
rights, including where such works or other subject matter are covered by an
exception or limitation.
Member States shall ensure that users in each Member State are able to rely on
any of the following existing exceptions or limitations when uploading and making
available content generated by users on online con
8. The application of this Article shall not lead to any general monitoring obligation.
Member States shall provide that online content-sharing service providers provide
rightholders, at their request, with adequate information on the functioning of
their practices with regard to the cooperation referred to in paragraph 4 and,
where licensing agreements are concluded between service providers and
rightholders, information on the use of content covered by the agreements.
9. Member States shall provide that online content-sharing service providers put in
place an effective and expeditious complaint and redress mechanism that is
available to users of their services in the event of disputes over the disabling of
access to, or the removal of, works or other subject matter uploaded by them.
Where rightholders request to have access to their specific works or other subject
matter disabled or those works or other subject matter removed, they shall duly
justify the reasons for their requests. Complaints submitted under the mechanism
provided for in the first subparagraph shall be processed without undue delay, and
decisions to disable access to or remove uploaded content shall be subject to
human review. Member States shall also ensure that out-of-court redress
mechanisms are available for the settlement of disputes. Such mechanisms shall
enable disputes to be settled impartially and shall not deprive the user of the legal
protection afforded by national law, without prejudice to the rights of users to have
recourse to efficient judicial remedies. In particular, Member States shall ensure
that users have access to a court or another relevant judicial authority to assert the
use of an exception or limitation to copyright and related rights.
This Directive shall in no way affect legitimate uses, such as uses under exceptions
or limitations provided for in Union law, and shall not lead to any identification of
individual users nor to the processing of personal data, except in accordance with
Directive 2002/58/EC and Regulation (EU) 2016/679.
Online content-sharing service providers shall inform their users in their terms
and conditions that they can use works and other subject matter under exceptions
or limitations to copyright and related rights provided for in Union law.
10. As of …\[date of entry into force of this Directive\] the Commission, in cooperation
with the Member States, shall organise stakeholder dialogues to discuss best
practices for cooperation between online content-sharing service providers and
rightholders. The Commission shall, in consultation with online content-sharing
service providers, rightholders, users’ organisations and other relevant
stakeholders, and taking into account the results of the stakeholder dialogues,
issue guidance on the application of this Article, in particular regarding the
cooperation referred to in paragraph 4. When discussing best practices, special
account shall be taken, among other things, of the need to balance fundamental
rights and of the use of exceptions and limitations. For the purpose of the
stakeholder dialogues, users’ organisations shall have access to adequate
information from online content-sharing service providers on the functioning of
their practices with regard to paragraph 4.