Even if the commentators, before and after the vote, spoke about a comparison between two contrasting worlds, in reality the proximity and collaboration between the two sectors is now consolidated and developed. In the streaming age of Netflix and Spotify, the contents cannot be separated from the digital platforms and the latter must recognize adequate rights for exploitation.
In fact, the directive does not change the existing basic legal structure, for example in the music sector, but simply clarifies to the market the role played by some companies like the platforms for uploading contents, typically videos.
The amendments voted on the original Commission text, compared to the July text, cleared by the Legal Affairs Committee, further mediated the different positions, i.e. guaranteeing a fair remuneration of the rights holders, clarifying the position of the UGC platforms compared to the current scenario with reference to the liability provided by the legislation on electronic commerce (safe harbor), and safeguards for users of services, or uploaders.
What the new text of the Directive provides
Let's see what the new text provides. First of all, it confirms that online content sharing service providers make an act of communication to the public and are therefore responsible for their content and should therefore conclude fair and appropriate licensing agreements with right holders.
An important step to solve the question of the value gap. In the event that licensing agreements are concluded, these should cover, to the same extent, also the liability of users acting on a non-commercial basis. This is an important point for the safeguard of users, given that until today potentially, they would be called to respond to the violation. A step forward so not a step back.
Furthermore, as already provided for in Article 11, the responsibility of providers of online content sharing services referred to in Article 13 does not extend to hypertext links with regard to journalistic publications. Another point that had generated alarm by hypothesis of censorship, none of this.
Amendment 147, voted by the Parliament, excludes the technological measures originally provided for in Article 13 of the Legal Affairs Committee. The whole part on the obligation of recognition technologies has been eliminated and today the text only provides for cooperation in good faith.
Finally, with regard to procedures related to breach notification, Member States should ensure that content sharing service providers establish fast and effective complaint and redress mechanisms available to users where the cooperation referred to in the aforementioned article leads to unjustified removal. of their contents. Complaints submitted under these mechanisms should be dealt with without delay. Rights holders should reasonably justify their decisions to prevent complaints from being rejected.
The progress of the directive
Therefore it is evident that much progress has been made and that the extension of the concept of public communication to video sharing platforms does not affect the consumer or user of the service at all, but simply clarifies that platforms such as YouTube perform an active service.
The definition of "online content sharing service provider" within the meaning of this Directive includes service providers of the information society which pursue, among their various main purposes, the storage, making publicly accessible and transmitting significant quantities of content protected by copyright or made available by users, which optimize content and promote for profit, among other things by promoting visualization, tagging, care and sequencing of works or other material loaded, regardless of the means used for this purpose.
The protections for startups and small businesses
A further safeguard, just to meet start-ups and small businesses’ needs, as requested by many parties, concerns the definition of "online content sharing service providers" which, in the new text approved in Parliament, does not apply to micro-enterprises and small businesses within the meaning of Title I of the Annex to Commission Recommendation 2003/361 / EC, to service providers acting for non-commercial purposes, such as online encyclopedias, or online service providers where content is uploaded with the permission of all holders the rights involved, such as the repositories of scientific or pedagogical data.
Individual-use cloud service providers which do not offer direct access to the public, open source platform development software, and online markets whose main business is physical retailing of physical assets, should not be considered lenders of online content sharing services under the Directive.
It was therefore a real progress compared to the text published by JURI and that will be the subject of the negotiation. Many commentators have unfortunately worked on texts of the Legal Committee, or worse, on interpretations that had nothing to do with the text that came out of the plenary.
From the point of view of the music industry, even if the approved text could have been better, important objectives have been reached to create an adequate and proportionate level playing field, without competitive and supply chain distortions.
Now we expect the new Italian government to understand that there are no risks to the structure of the network, which is now the basis for the development of the music industry in our country, given that more than 50% of the market is generated by streaming revenues, and support a text that innovates and fosters the growth of the digital sector.
Enzo Mazza, SCF ceo