Transposition of Article 17 of Directive 2019/790: setting an audience threshold (400,000 unique visitors) and uploaded works (variable according to type)

29/11/2021

The determination of the platforms falling within the scope of Article 17 of the Copyright Directive, transposed into French national law, has been clarified with the publication in the Official Journal of a decree and an order on 21 October 2021 [1].

The European Copyright Directive [2] currently being transposed into French law, contains an Article 17 devoted to the use of protected content by providers of online content sharing services. This article is part of Title IV relating to “measures to ensure the proper functioning of the copyright market” and more specifically within a Chapter 2 devoted to “particular uses of protected content by online services“.

For the record, a “provider of online content sharing services” is defined as the provider of an information society service whose main purpose or one of its main purposes is to store and provide public access to a significant amount of copyrighted works or other protected subject matter uploaded by its users, which it organises and promotes for commercial purposes [3].

The cornerstone of the Directive is that it provides for the principle of liability of platforms on which works are uploaded without the authorisation of the rightholders, whether or not they are uploaded by their users, unless they can prove that they have made their best efforts to (i) obtain authorisation, (ii) ensure the unavailability of the work, and (iii) acted promptly after a reasoned notification from the rightholder [4].

The proper fulfilment of these obligations had to be analysed in particular by taking into account certain criteria [5]:

  • Type, audience and size of the service;
  • Type of works uploaded.

The ordinance adopted by the Council of Ministers on 12 May 2021 [6], transposing Article 17 of the Directive, provided in its Articles 1 and 2 for the inclusion in the Intellectual Property Code of Articles L. 137-1 and 2 (for copyright) and L. 219-2 (for related rights). Taking up the content of Article 17 of the Directive, they refer to a decree the task of determining the “methods for assessing the significant quantity of protected works or objects (…) for the purposes of determining the providers of online content sharing services[7]. This provides for the addition of an Article R. 136-1 to the CPI, under which “the significant quantity of works and protected objects (…) may be deemed to have been reached when the service’s audience exceeds a threshold set by decree (…) and the number of content files uploaded by users of this service exceeds one of the thresholds set by this decree[8].

The order [9] referred to in the decree determines these thresholds:

– (i) the audience threshold: this is set at 400,000 unique visitors in France, per month and per online public communication service, calculated on the basis of the last calendar year.

– (ii) the threshold for the number of works uploaded by users: this varies according to the type of work uploaded

o Audiovisual works: 100

o Radio works including podcasts: 100

o Musical works: 5,000

o Visual art works: 10,000

o Written works, including press articles and audiobooks: 100

o Video games: 100

o Content including all types of works: 10,000

Our team is at your disposal to decipher and analyse the details of the text.

By the IP/IT team of the law firm UGGC.

[1] JORF n° 0246 of 21 October 2021, texts 28 and 29

[2] Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the digital single market and amending Directives 96/9/EC and 2001/29/EC

[3]  Article 2, 6) Directive 2019/790

[4] Article 17(4) Directive 2019/790

[5] Article 17, 5), a) Directive 2019/790

[6] Order No 2021-580 of 12 May 2021 transposing Article 2(6) and Articles 17 to 23 of Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyrights

[7] Decree No. 2021-1369 of October 20, 2021 amending the Intellectual Property Code and relating to certain providers of online content sharing services, introductory part

[8] Article 1 of the aforementioned decree [9] Order of 20 October 2021 for the application of Decree No. 2021-1369 of 20 October 2021 amending the Intellectual Property Code and relating to certain providers of online content sharing services

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