With the EU’s new controversial Digital Single Market Directive increasing the burden of online sharing platforms (such as Twitter, YouTube and Facebook), considerable legal and political questions are being raised as to how far preference for rightholders should swing to the detriment of the content platform business model and the users and creators of these platforms.
This article will discuss the looming threat of increased liability that sharing platforms are preparing for, combined with the potential damaging consequences this may have for the industry and freedom of speech which could be substantial.
With approximately 500 hours of video being uploaded to YouTube every minute (1), it’s easy to appreciate the scale of the problem that sharing platforms are facing when tackling third parties uploading copyright protected material. The European Court of Justice, in this respect, acknowledged this issue in their recent 2021 YouTube judgment (2), clarifying that sharing platforms will not be held liable for knowing, in a general sense, that illegal content exists on their sites.
Nevertheless, even though the current legal position appears to strike a sensible balance between rightholder, the platform business model and the user, the reality paints a very different picture. For instance, the copyright claiming procedure on YouTube is evidently broken; the notorious strike system allows for rightholders to suspend revenue and publication of any video or audio, even if there would be no merits for a copyright infringement claim in court. The system is, therefore, ripe for abuse with the most famous example being the H3H3 channel case whereby a clearcut parody fair use case was dragged out for years, racking up hundreds of thousands in legal fees for the comedy duo (3).
However, the problem cannot solely be attributed to poor management by sharing platforms themselves as these companies continue to be vulnerable to new governmental laws which are seeking to significantly raise the burden of platforms in relation to their duty to protect rightholders. The EU’s new Digital Single Market Directive is of considerable concern for online content-sharing service providers who will now be held liable for copyright protected content uploaded by users in a general sense, unless they have either:
(1) Obtained authorization from the rightholder; or
(2) Complied with the ‘best efforts’ requirements to show:
(i) they have tried to obtain necessary authorisation;
(ii) taken down or disabled access upon receiving notice from the rightholder;
(iii) prevented future uploads of such content; and / or
(iv) ensured the inaccessibility of content for which the rightholder has supplied the necessary information.
While this EU Directive will not have any direct legal impacts in the UK, it will push a global copyright agenda, meaning we are likely to see a further clamp-down on copyright policies from the likes of YouTube and other content sharing providers.
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(1) YouTube for Press (blog.youtube)
(2) YouTube and Cyando (C-682/18)
(3) Hosseinzadeh v. Klein
