How to Comply With Article 17 of the EU Copyright Directive

If you host user-generated content, you could be liable if it infringes copyright. Article 17 of the EU Copyright Directive offers websites some protection from this liability, as long as they follow rules blocking or taking down copyrighted content. The broad principles may be familiar if you've encountered the United States's DMCA takedown system. Here's what you need to know and do.

What is Article 17 of the EU Copyright Directive?

Article 17 is part of the Directive on Copyright in the Digital Single Market, more commonly known as the EU Copyright Directive. This was passed by the European Union in 2019 and aims to create similar copyright rules across the different EU member countries. The goal is to make it easier and more predictable for businesses to operate and compete across multiple countries.

Although the text of Article 17 is quite legalistic, the key points are:

• Websites (specifically "online content-sharing service providers") should get permission from copyright holders to give the public access to any copyrighted material uploaded by users.

• If they don't do this, the site will be liable for copyright infringement unless they have:

  • Done their best to block any copyrighted material on a list provided by the rightsholders.
  • Quickly taken down (and blocked future uploads) of copyrighted material when the rightsholder notifies them about the infringement.
• How strictly these rules are enforced should take into account the type of material, the size of the website, the size of its audience, and the financial impact of complying with the rules.
• Websites should have rules and processes for handling disputes if an uploader believes they have not breached copyright.
• Normal exemptions to copyright (such as "fair use") still apply.

We'll break down these rules in more detail later in this guide.

Who Does Article 17 of the EU Copyright Directive Cover?

The specific wording of Article 17 is "online content-sharing service provider" which the directive defines as:

"a provider of an information society service of which the 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 organizes and promotes for profit-making purposes."

Broadly this covers sites such as video, image or filesharing services where users uploading material is a key point of the site. Some of the specific exclusions listed in the directive are:

• Not-for-profit encyclopedias and other educational sites
• Open-source software sharing platforms
• Website hosting services
• Marketplaces such as auction sites
• Cloud services where users upload files for their own use rather than to share with others

What is the Legal Status of Article 17 of the EU Copyright Directive?

The EU Copyright Directive is enforced through individual national laws.

You may be familiar with European Union regulations such as the General Data Protection Regulation (GDPR). Once these come into force, they automatically have full legal effect in all European Union member countries.

Directives such as the EU Copyright Directive work differently to regulations. They don't have legal power in their own right. Instead, they set out a series of legal principles and objectives. Individual EU countries must then pass a national law that achieves these objectives.

This means the precise implementation of the EU Copyright Directive can vary slightly between countries. (COMMUNIA has a good guide to some of the differences.) However, the key principles of Article 17 apply everywhere and the compliance requirements work the same across all countries.

In 2021, the European Commission issued formal guidance on the EU Copyright Directive. (We'll refer to this as the "official guidance" later in this article.) This is designed to clarify and reinforce any unclear elements in the directive, including issues that arose once countries started implementing it through their laws. Governments and courts must take account of this guidance when interpreting the directive and laws.

What Should I Do to Comply With Article 17 of the EU Copyright Directive?

Exactly what you need to do will depend on how long your site has been operating, how much
money it makes, and how many users it has. We've detailed the criteria for each requirement.

Remember, the rules don't say you must take these actions. Instead they say that if you do take all the relevant actions, you will be protected from liability for uploads of copyrighted material. If you choose not to take the action, you could face legal responsibility for breaking copyright laws.

Authorization

This requirement applies to all sites.

Strictly speaking, you must show you have "made best efforts to obtain an authorization" from copyright holders for any of your users to upload copyrighted materials. In practice, this rule is not as strong as it seems because the directive takes into account "the availability of suitable and effective means and their cost" for websites.

For most sites, it won't be practical to, for example, moderate all uploads and get rightsholder permission before any copyrighted material goes public.

The official guidance says that "best efforts" should mean you "as a minimum, engage proactively with rightsholders that can be easily identified and located, notably those representing a broad catalogue of works or other subject matter."

For example, if you host a site that lets users upload full-length videos, you could ask major studios for authorization to let your users upload their movies. (Even if they say no, which is likely, you've still made your best efforts.)

MGM Studios offers an easy way to ask for authorization:

Takedowns

This requirement applies to all sites.

The directive says you must act "expeditiously" (as quickly as possible) to take down copyrighted material once you have received a notice from the rightsholder. The rules say the notice must be "sufficiently substantiated", meaning it gives enough detail to be clear about what material is involved and who holds the copyright. The rightsholder must justify their demand for the takedown.

The official guidance says the notice should give "a clear indication of the location of that content" such as a page URL.

Dailymotion has a dedicated link for filing takedown requests:

Blocklists

This requirement applies if your service has been available for at least three years, or your annual turnover is more than €10 million.

Under this rule, you must use "best efforts" to make sure you block uploads of material (and block access to material already uploaded) "for which the rightsholders have provided the service providers with the relevant and necessary information."

In practice this means the rightsholders provide blocklists of copyrighted material. This could be a literal list or a digital matching database. For example, some rightsholders to video libraries have provided a digital matching database to sites like YouTube. This means YouTube can automatically block any upload of material from this library, including clips of longer videos.

Again, there's some flexibility on this rule as the "best efforts" requirement takes into account the "the availability of suitable and effective means and their cost for service providers." A court could rule that this requirement wouldn't be as strictly enforced on a small site with limited resources as it is on a site like YouTube.

The official guidance says courts should take into account "the available industry practices on the market at any given point in time." This includes both the technology that is available and how practical and affordable it is for a particular site to use that technology.

YouTube explains its content matching/blocklist system:

Future Uploads

This requirement applies to sites which average more than 5 million unique visitors a month.
Under this rule, you must block future uploads of any material you have taken down following a notice from a rightsholder. This would work technically in a similar way to the blocklist rule.

Complaints Mechanism

This requirement applies to all sites.

You must:

• Have a complaints mechanism for users to dispute a decision to take material down or block it from being uploaded.
• Have the capacity for a human to review the decision.
• Have a system to settle any disputes without the need to go to court.

This requirement does not override the rights of either the rightsholder or the user to take legal action.

SoundCloud tells uploaders about reasons they could dispute a takedown or block:

Transparency

This requirement applies to all sites.

If a rightsholder asks, you must tell them what (if any) automated tools you use to block or remove unauthorized content.

If you have a licensing agreement with a rightsholder, you must tell them when and how their content is used (for example, when somebody uploads it).

Are There Any Exemptions To The Rules of Article 17 of the EU Copyright Directive?

Any material which is exempt from copyright enforcement generally will also be exempt from the Article 17 rules. This includes "fair use" exemptions.

This part of Article 17 works based on the country where the uploader is: in other words you don't have to take down copyrighted material if the user who uploaded it is covered by an exemption in their country.

The directive says (and the official guidance confirms) that there is always an exemption for "quotation, criticism [and] review" and "use for the purpose of caricature, parody or pastiche." This applies even if such material isn't usually exempt from copyright rules in a particular country.

Your terms and conditions must explicitly tell users they are allowed to upload copyrighted material if it is covered by an exemption.

Vimeo gives specific detail on these exemptions:

Is There Anything Else I Should Do Regarding Article 17 of the EU Copyright Directive?

Although the directive doesn't explicitly require this, it's a smart idea to explicitly ban users from uploading copyrighted material where no exemption applies. You could do this through a clause in a Terms and Conditions agreement, terms of use, or a similar document. Doing so may:

• Make it easier to take action against a user, for example by closing their account.
• Count in your favour if a court is deciding whether you made your best efforts to follow the Article 17 rules.

Fiverr makes clear the consequences of uploading copyrighted material without permission:

Is The EU Copyright Directive The Same As The Digital Services Act?

No, these two sets of EU rules both cover uploaded copyrighted material but apply to different types of service provider. The Copyright Directive applies to websites which let users upload material, with the site itself "publishing" the content. The Digital Services Act covers "intermediary services" such as web hosting companies or site caching services.

Summary

The EU Copyright Directive is a set of rules that European Union countries must incorporate into their national laws. Article 17 is part of the directive and deals with content sharing sites.

The rules say such sites can be held liable if their users upload content that infringes copyright, unless the sites follow specific rules.

The main rules for all sites are to make best efforts to get authorization from rightsholders to allow uploads, and to take down or block copyrighted materials if the rightsholder complains. Sites other than small startups must also respect any blocklists provided by rightsholders, though the rules take into account how technically and financially viable this is. Large sites must block future uploads of any material they've taken down.

All sites should also have a complaints mechanism for when uploaders dispute a copyright claim.

The rules have specific exemptions for fair use (eg reviews) and parodies.