ETNO and GSMA joint position paper on Article 13 of the proposed Directive on Copyright in the Digital Single Market
The core aim of Article 13 of the proposed Directive on Copyright in the Digital Single Market is to consider the legal relationship between content rights-holders and a new class of information society service provider termed a ‘online content sharing service provider’ (“OCSSP”) that stores and gives public access to copyright works such as music/audiovisual content. Article 13 represents a focussed sector-specific approach to addressing the so-called ‘value gap’ by requiring that OCSSPs obtain necessary authorisations from relevant rights-holders.
ETNO and the GSMA believes in the importance of the creative content industries and in the principle underlying Article 13 that content rights-holders should receive fair revenue from copyright users, including OCSSPs, when their works are exploited. However, as a focussed sector-specific intervention, it is critical that Article 13 strikes a fair and proportionate balance between the interests of all affected parties and that its scope is strictly limited to avoid risking a detrimental effect on the larger digital economy. Against this background, three key issues are considered below:
a) The scope of Article 13 must be strictly limited and should include express exclusions for internet access providers and cloud service providers (see Section A below).
b) The core aim of Article 13 to impose a licensing obligation on OCSSPs can be achieved without engaging the communication to the public right and the hosting defence (see Section B and Annex 1 below).
c) Close scrutiny on the drafting of the Technical Measures Obligation (as defined further below) is necessary to avoid any inadvertent risk of conflict between Article 13 and Article 15 of the E-Commerce Directive (“ECD”) which is a fundamental provision to the proportionate balancing of rights and core to the continued provision of digital economy services by mere conduits, caches and hosts. This also requires that the ECD is included in the list of directives at Article 1(2) and Recital 4. (see Section C below and Annex 2 below).