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1/ Hogan Lovells (HL - @hoganlovells) ‘Global Media and Communications Watch’ blog examines #Article13/#Article17 of the #EU #CopyrightDirective hlmediacomms.com/2019/04/01/dsm… #SaveYourInternet #Artikel13 #Artikel17
2/ HL reminds everyone that #Article13/#Article17 “makes some online services primarily liable for copyright infringement in relation to the acts of their users” #CopyrightDirective #SaveYourInternet #Artikel13 #Artikel17
3/ HL points out that “while the online content sharing services are urged to conclude licensing agreements with right holders or get their authorisation, it is expressly stated that rightholders are free to refuse to grant authorisation” #SaveYourInternet #Article13 #Article17
4/ Such licences should cover services' users under #Article13/#Article17 if they are “not acting on a commercial basis” or if their “activity does not generate significant revenues”, but HL cautions that “it is not clear what 'significant' revenues means” #SaveYourInternet
5/ HL observes that some content sharing services are excluded from #Article13/#Article17’s scope, but warns that “discussion forums (hosting comments) or dating platforms (hosting pictures) could arguably be covered by the definition” #SaveYourInternet #Article13 #Article17
6/ HL thinks that since there’s no threshold on “profit-making” in #Article13’s definition that “it could be argued that any profits made by the platform operator could be sufficient to make it fall within the scope of the definition regardless of the amount” #SaveYourInternet
7/ In other words: under #Article13/#Article17 “a small platform operated by one person (…) which generates through advertising barely enough revenues to be self-sufficient is treated much the same as the most popular platforms out there” #SaveYourInternet #Artikel13 #Artikel17
8/ HL explains that “a central element of the [liability mitigation] regime is the concept of best efforts”, but cautions that “with so many factors to (potentially) consider confusion on how to implement the steps is highly likely” #SaveYourInternet #Article13 #Article17
9/ HL believes the ‘best effort’ concept raises questions such as: “How is a content sharing service supposed to know what content to get a licence for, and from which right holder?”, and considers “the answers are not straightforward” #SaveYourInternet #Article13 #Article17
10/ HL is also critical of the ‘lighter’ regime for #startups, as for them “it is not clear however which standard of ‘best efforts’ applies the acts of these content sharing services” #SaveYourInternet #Article13 #Article17 #Artikel13 #Artikel17
11/ On safeguarding users’ rights HL warns that it will be challenging “for content sharing services to comply with the obligations of [Article13/#Article17] whilst ensuring that lawfully uploaded content is not blocked” #SaveYourInternet #Artikel13 #Artikel17 #CopyrightDirective
12/ HL considers it’s “hard to see how the regime will be properly harmonised across the various Member States [MS] when there is so much scope for interpretation when [MS] come to implement the #CopyrightDirective into national laws” #SaveYourInternet #Article13 #Article17
13/ HL concludes that national courts & the #CJEU will have to answers questions with regards to the amount of ‘best efforts’ online platforms will have to show and about the services that will end-up being included under the #Article13/#Article17 definition #SaveYourInternet
