Whether you agree with the new European Copyright Directive or not, an objective of the Directive was to ‘clarify’ the definition and obligations of online content sharing service providers (“OCSSP”)One area which remains unclear, howeveris the application of the Directive to ‘live streaming’ platforms – which in these times are becoming an increasingly significant category of media. 

A new article by one of Europe’s leading copyright law experts, Dr. Eleonora Rosatii, examines live streaming services in the context of existing EU copyright law and the new 2019 EU Directive on Copyright.  

Conclusion: Live Streaming Platforms Classified as OCSSPs 

Dr. Rosati’s analysis concludes that live streaming platforms fall within the definition of an ‘online content sharing service provider’ under the new 2019 EU Directive on Copyright in the Digital Single Market (The Copyright Directive). These platforms can, therefore, be held directly liable for copyright infringement by making infringing streams, initiated by their users, available to the public.  

In this respect, the Copyright Directive does not materially alter their position as it stood under EU law prior to the Directive being passed. What is different, is Article 17 provides live streaming platforms protection from liability, if they make best efforts to get licenses and take measures according to high industry standards to ensure the non-availability of infringing content via their platform. 

Summary of Analysis 

Given the huge spike in live streams of DJ sets during the COVID-19 pandemic, this timely article looks at live-streamed performances and notes that, if the performance had taken place in a public venue, the venue would have been required to obtain copyright licenses.  

Dr. Rosati examines the situation of a hypothetical Platform X: DJs upload live streams of their performances which include the playing of copyright sound recordings. Platform X stores the material only for so long as necessary to enable the uploads to be transcoded and then streamed to an audience of frustrated would-be club-goers. Storage is therefore ephemeral, and no copies of the DJ sets are stored for future on-demand streams or downloads. The live streams are indexed by the platform, enabling would-be listeners to search and find streams or DJs they like. 

The author explores the platform’s direct liability under the principles of existing EU law for making user-generated content available to the public. These principles were developed in successive cases decided by The Court of Justice of the European Union, culminating in the express finding of direct liability in the 2017 decision in Ziggo (the Pirate Bay case)(C-610/15)The precise nature and scope of this liability remains uncertain as evidenced by the number of CJEU referrals currently pending in this area (YouTube, C-682/18; Elsevier (C-683/18); Stichting Brein (C-442/19); and Puls 4 TV (C-500/19)). 

Dr. Rosati says that it is not surprising that the Copyright Directive is characterized (in Recital 64) as a ‘clarification’ of existing law. She points out that where Article 17 goes beyond the pre-2019 EU copyright regime, it is not in the direct liability of OCSSPs for acts of communication or making available to the public, but in the regime that it establishes around that potential liability. 

The article also examines whether a live streaming service can be considered an Online Content-Sharing Service Provider (OCSSP). Article 2(6) of The Copyright Directive defines an OCSSP as an online service, one of whose main purposes is “to store and give the public access” to large amounts of copyright content which it “organizes and promotes for profit-making purposes.” The issue is whether the ephemeral nature of the storage disqualifies the live streaming platform from being classified as an OCSSP. Rosati examines this question in-depth in the context of the Copyright Directive and the E-Commerce Directive and concludes:  

“Live streaming providers that behave like Streaming Platform X in the example above are to be regarded as OCSSPs, even if the storage made of user-uploaded content is limited in time. What is relevant for the qualification of a provider as an OCSSP in principle is the purpose that it pursues (to store and give the public access to a large amount of protected subject matter uploaded by users) and, with that, the role that it performs (organization and promotion of such subject matter for profit-making purposes), not the duration (e.g., permanent or temporary storage of protected content) of the activity at hand.” 

Dr Rosati concludes that the activities of the live streaming platforms are therefore governed by Article 17(4) of the Copyright Directive, and because of that, OCSSPs can protect themselves from liability, if they make efforts to obtain licenses for the content, and in the absence of any license, use best efforts, according to high industry standards, to prevent the availability of unlicensed content contained in the live streams. In conclusionif live streaming platforms are classified as OCSSPs, the new Copyright Directive provides them a new ‘safe-harbour’ from liability provided they meet their other Article 17 obligations. 

Commentary: Platforms Benefit from Safe Harbour as 2019 Copyright Directive OCSSP 

The relevance of this article to live streaming platforms is clear and the implications are significant. Any live streaming service that gives public access to large amounts of copyright content uploaded by users, which it organizes and promotes for profit-making purposes, can be held directly liable for copyright infringement. This applies to both pre- and post- 2019 EU Copyright Directive regimes 

Prior to the Directive, even if a live streaming platform tried to get licenses and employed content recognition technologies to prevent unlicensed uploads, the platform would be liable for any infringing content that managed to get uploaded to its platform.  

The new Copyright Directive changes that: The platform can now protect itself from direct liability by taking the steps prescribed in Article 17(4). These include using best efforts, according to high industry standards, to ensure the non-availability of content, in respect of which the copyright owner has provided relevant and necessary information. 

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IPKat Blog

[i] Associate Professor in Intellectual Property (IP) Law at Stockholm University; Guest Professor at CEIPI-Université de Strasbourg; Research Associate and Lecturer at EDHEC Business School; Associate at the Centre for Intellectual Property and Information Law at the University of Cambridge; Of Counsel at Bird & Bird; and Editor of the Journal of Intellectual Property Law & Practice (Oxford University Press, peer-reviewed). Dr. Rosati holds law degrees from the University of Florence, an LLM from the University of Cambridge, and PhD from the European University Institute.

Audible Magic Corporation Review is issued for informational purposes only and is not intended to be construed or used as general legal advice. Please contact the author(s) or your Audible Magic Corporation contact if you have questions regarding the currency of this information.

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