In our blog series highlighting the implementation of the DSM directive, we will each day put a spotlight on the key changes in each of these four areas brought by the Belgian implementation of the DSM directive. In this first blog post in the series, we will start by tackling the ‘hot potato’ of article 17.
The road to the (Belgian) implementation of the DSM directive has been a long and bumpy one. A first proposal for the DSM directive was made back in 2016, at a time when George Michael and Leonard Cohen were still alive.
The work on the directive began from the observation that IP’s monetisation across the internet has massively increased in the past few years. After two and a half years of extensive lobbying by both the tech giants and rights holders, the European Parliament finally adopted the DSM directive in 2019 (see our previous blog post), with the aim of creating an EU digital single market by strengthening the position of rights holders whilst creating technology-proof legislation.
The EU Member States then had until 7 June 2021 to implement the DSM directive into national law. However, by the date of the implementation deadline only three Member States had fully implemented the directive.
On 1 August 2022, more than one year later than the deadline set by the EU Commission, Belgium has ‘finished its homework’ and published the law transposing the DSM directive in the Belgian State Gazette (NL / FR). A few exceptions aside, the law is effective immediately.
Most of the provisions are transposed into Book XI of the Belgian Code of Economic Law (CEL), but some provisions - relating to enforcement and proceedings - are transposed into Book XVII of the same and the Belgian Judicial Code
To filter or not to filter? New rules for sharing protected content
This million-dollar question has gone by many numbers. Initially proposed as draft article 13, the filtering obligation tied to the exemption of liability for OCSPs was finally laid down in article 17 in the DSM directive’s adopted text. It has been transposed in Belgium in articles XI.228/3 to XI.228/9 CEL.
As discussed in more depth in our previous blog, OCSPs will have to take certain actions if they want to avoid liability for sharing unauthorised copyright material by their users.
As such, OCSPs will need to obtain the authorisation from right holders when they allow the public to access copyright-protected material by concluding license agreements with them.
The conclusion of such licenses entails that new revenues will be generated for rights holders. Following the example of the German legislator, Belgium transposed article 17 of the DSM directive entirely, with a right to remuneration for holders of copyright or neighbouring rights (including authors and performers) being mandatorily collectively managed.
If no authorisation has been obtained to upload the content (meaning that no license agreement was concluded between the OCSP and the right holder or collecting society), then the OCSP will be liable for the unlawful content uploaded by its users unless it can prove that it (i) has made best efforts to obtain an authorisation, (ii) has made ‘best efforts’ to ensure the unavailability of unauthorised content for which right holders have provided necessary and relevant information, and (iii) has acted expeditiously to remove any unauthorised content following receipt of a notice and also has made ‘best efforts’ to prevent future uploads.
In practice, this amounts to a de facto obligation of carrying out a prior review of the content that users wish to upload onto their platforms.
Poland challenged the fundamental rights compliance of this article 17, which resulted in a judgment (C-401/19) by the EU Court of Justice of 26 April 2022 that ended the saga by ruling that article 17 was valid.
Article 17 only applies to OCSPs, which are defined as “providers of an information society service whose 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”. In practice, this means the big sharing platforms such as YouTube and Facebook.
It is worth noting that the copyright exceptions for quotation, criticism, review, caricature, parody or pastiche also apply. Such acts do not constitute an act of infringement. Therefore, contrary to what people have often been made to believe, memes and Gifs will remain freely available on online platforms.
Coming tomorrow will be our second blog post of the series on the new neighbouring rights for press publishers and the new mandatory exceptions to copyright.
In the meantime, do not hesitate to reach out to our IP team for further guidance.