The EU Commission is stepping up the fight against illegal content with Internet platforms
Discussions about copyright rules for the digital age are rising. In the last quarter of 2017, the European Commission (“EC”) has been pretty busy to step up the fight against online piracy and counterfeiting; but online platforms also have a role to play. Indeed, hundreds of thousands of movies, TV shows, software and books are still available to download for free. In this article, we highlight some of the new proposals aiming at protecting copyright and ensuring that illegal content once taken down does not (too quickly) simply reappear.
Lastly, the guidance encourages the use of new instruments such as protective brief (defendant informs the court before an infringement case has formally been lodged) and dynamic injunctions (e.g. against repeat infringers).
Very importantly, the EC emphasizes that when online services explicitly search for pirated materials, they won’t lose the benefit of the liability exemption provided for in Article 14 of the E-Commerce Directive.
In particular, the taking of such measures do not need to imply that the online platform concerned plays an active role which would no longer allow it to benefit from the said exemption. Whenever such measures lead the online platform to obtain actual knowledge or awareness of illegal content, it shall act expeditiously to remove or to disable access to the illegal information in question to satisfy the conditions required by law for the continued availability of that exemption.
Possible legislative measures in a near future?
Although these recommendations are non-binding, the EC expects online platforms to implement their Guidelines. Implementation will be monitored over the next months. If nothing is done by then, the EC threatens to impose binding legislation: “The Commission expects online platforms to take swift action over the coming months, (…) [and] will monitor progress and assess whether additional measures are needed, in order to ensure the swift and proactive detection and removal of illegal content online, including possible legislative measures to complement the existing regulatory framework. This work will be completed by May 2018”.