During the discussions on the proposal and the final adoption of the Directive on copyright and related rights on the single digital market, as well as discussions on the proposal of our new Act on copyright and related rights, the most dust was raised regarding the provisions on the sharing of copyrighted content uploaded by users on various digital platforms. There has been a rare interest in European regulation in practically all spheres of society, especially among those who use social networks to a great extent in their daily life and business.
The proposals that were speculated about and eventually reached consensus, although the final solutions turned out to be much different and more balanced than what was expected, were mostly not enthusiastically received by the public.
Users feared that the restrictions would reach so far that they would not be allowed to use formats such as MEMEs or GIFs, popular ways of conveying thoughts and messages, usually humorous, which are mainly based on clips from series, movies and other sources of popular cultures.
There was a lot of talk about fears of censorship, limiting the flow of information, limiting freedom of expression and various forms of creative freedom. On the part of the users, a belief was created that they will be prevented from sharing content if they did not create it themselves.
On the other hand, digital services tried to remove responsibility from themselves, considering that they only provide a space for exchange and are not obliged to control the content. However, just as the former belief that content on social networks and other platforms where users have the main role in uploading and promoting it should not be subject to any platform control, and all in the name of freedom of speech and expression, has faded away, it has moved in a similar direction. and in this matter. Nevertheless, it was agreed that there are limits to such “freedoms” when the result is e.g. hate speech, discrimination, calls to violence and similar content. Today, these services have employees who control and decide on the permissibility of content on a daily basis. When it comes to the copyright and related rights of their holders, it is equally important that they are protected to the extent they deserve and must be, that control mechanisms are ensured and that one’s responsibility for the exploitation of other people’s works is established, while at the same time maintaining freedom of expression and information at the highest level.
It was necessary to first create awareness, and then find an adequate regulatory framework that would be acceptable to all stakeholders, and yet ensure that authors finally get what belongs to them from the use of their works, i.e. that they get mechanisms for autonomous decision-making on whether their works are allowed to use or not.
For years, this was not the case and rights holders could not monitor and charge for the use of their content. The creation of the so-called value gap, i.e. a huge profit on the part of the provider of content sharing services via the Internet, and almost no profitability from the same on the part of the holder of the rights to the used works.
The Directive tried to find a way out of all the mentioned problems while at the same time respecting the interests and rights of all involved parties to the greatest extent. The most important thing is the establishment of a fair system that functions well in reality and in practice, and this is only possible if no one’s rights are threatened or neglected and everyone from their position can pursue their legitimate interests, in this case including rights holders, service providers and users of those services.
Below is an overview of the most important provisions introduced by the new law on this matter.
In order to protect the rights of authors in the aforementioned environment, the law introduces the concept of the exclusive right to provide public access to copyrighted works uploaded by users on online content sharing platforms.
It is a specific type of right to communicate to the public as an exclusive property right of the author, for which his approval is always required in the form of a contract or in another way, except in cases where the law provides otherwise.
Digital services and platforms to which these provisions apply are information society service providers, as defined by the Electronic Commerce Act. This definition is supplemented by the concept of a content sharing service provider via the Internet according to the Copyright and Related Rights Act. The main or one of the main business purposes of the service provider in this case is to give the public access to large quantities of author’s works uploaded by its users, which it then organizes and promotes for the purpose of achieving direct or indirect financial or commercial benefit.
An important component is the realization of property or commercial benefit, so a service provider that stores and distributes large amounts of author’s works based on the contributions of its users will not be subject to these provisions if it does not achieve it or aims to achieve it in this way. This applies to, among others, non-profit online encyclopedias and scientific or educational repositories, including platforms for the development and sharing of open source computer programs as well as various cloud services that serve to store data.
The responsibility is on the platform
With the adoption of the Directive and the new Law, the platforms that provide the described services become responsible for checking and ensuring that the uploaded content is free to use, that it was obtained legally and that all the rights of the authors are respected. In order to give public access to works that have been uploaded, the platform is obliged to obtain the author’s approval. He is not obliged to give such approval nor is he obliged to conclude a contract, but when he requests the removal of his works that have already been posted, he is obliged to justify his request.
The given approval will necessarily include the right to reproduction and other modalities of communication to the public which, by the nature of things, precede this.
An important provision of the Law is that it is emphasized that contracts must fairly reflect a reasonable balance between both parties, which will certainly be subject to interpretation and possible revisions of the contract in practice, especially in cases where the popularity of certain authors suddenly increases and thus the level of profit they indirectly bring platforms.
In the same article, it was pointed out that authors must receive adequate compensation for their work. For this, as well as other purposes, the author who entered into the contract has the right to request information about the use of the work to which the contract refers.
Obligations of the platform and the possibility of exemption from liability
If the service provider has not obtained the necessary authorization of the author, he will be responsible for the unauthorized communication of the work. He can be relieved of this responsibility if he can prove that he has used his best efforts to obtain it and that he has acted in accordance with the highest professional standards within his industry.
Furthermore, if removal of the content was requested, the user is obliged to prove that he acted promptly in accordance with the stated standards and at the same time prevented further uploads of the work.
Everything is assessed depending on the cost of the measures to be taken, the type of service and work involved in the specific case, and the audience or reach of the platform itself.
Responsibility proportional to the breadth of influence, degree of earnings and popularity
New service providers that do not make a certain level of profit are subject to a more lenient regime of exemption requirements. More precisely, those services that have been present on the market for less than 3 years and do not generate more than 10 million euros in annual turnover are only obliged to make the best efforts to obtain the approval of the author and, if they receive a reasoned request from the author to remove the content, act quickly to remove or disable access to the work. This is a reasonable difference in treatment, considering the resources and control possibilities that they can dispose of at this stage of business development, compared to some more developed services that already make up the everyday life of the majority of the population.
However, if the number of users of such a service exceeds 5 million in one month, they too will have to use their best efforts to prevent further uploads of the work.
On platforms such as YouTube, it has been a long-standing phenomenon that users upload musical works with their own interpretations that they present in the form of video content, collages, or lyrics videos. Videos, pictures, texts and other works that belong to their authors or other rights holders are shared on social networks, without respecting what was once the most basic moral right of the author, to recognition of authorship. Furthermore, the right to integrity, the author’s right to object to the destruction or mutilation of his work, as well as the right to honor and reputation, was threatened; insisting that the work is not used in a way that damages it. It is about moral rights, which the author cannot renounce or leave their realization and use to others. In relation to these moral rights, it is necessary to make a distinction with the right of processing as the exclusive property right of the author.
The property right of the processing of the work, as well as any type of adaptation, processing or modification of the author’s work, is also called into question. Such cases are relatively common when we talk about the way content sharing works and the attitude towards it by users on internet platforms.
Authorized processing may or may not result in a new author’s work. If a work created by processing has features that make it a work of authorship and represents an intellectual creation of an individual character, it is protected as an independent work of authorship.
On the contrary, musical works that have been slightly reworked, adapted or musically processed in relation to which copyright protection has expired are not considered original intellectual creations and do not enjoy copyright protection.
The platform must also obtain permission for processing the work from the author, through the collective rights exercise system, but only if it has all the previously listed rights as prerequisites, i.e. the right to reproduce and communicate to the public.
What was introduced in relation to processing, considering the specificity of use, is the separation of the often overlapping property rights of processing and the moral right of integrity. If the property right of processing is given, the author has no right, even though his moral right of integrity is inalienable and remains so, to object to changes in the work made on the basis of that right, if the changes are in accordance with the purpose for which he approved the processing.
In each specific case, this will depend on the details, especially on the type of work, the method and type of processing, the possible creation of a new author’s work and other issues.
It is important that content control mechanisms, i.e. respect for copyrights and the existence of their approvals, do not violate the user’s right to privacy. In addition to the already established technology, and even more so after the implementation of these measures, it cannot be said that this right can exist in an absolute form and not be unlimited. But such restrictions must be proportionate to the goals they achieve.
That is why the Law, following the example of the already mentioned Directive, introduced some additional provisions on this matter. Essentially, it is prescribed that fulfilling the obligations of the platforms and the cooperation of authors and platforms in mutual reporting must not lead to a general obligation to monitor (activities on the platform, users or any other variable). Likewise, they must not result in the targeted identification of individual users or the collection and processing of personal data outside the scope of the General Data Protection Regulation (GDPR).
With the aim of protecting users in the newly reformed system, a complaint system has been established to which service providers, i.e. digital platforms, must respond quickly and effectively when access to a work is banned or it is removed.
Complaints must be handled immediately upon receipt, and in the case of automated removal decisions, must always be subject to human review. Users, in addition to other proceedings, including court proceedings, have the right to initiate proceedings before the Council of Experts for Compensation in the field of copyright and related rights.
Platforms must establish new terms of business and must inform users of all relevant details that apply to them.
If you have doubts about the application of any of these institutes in your work, you need to use a work, and you are not sure whether you are allowed to do it in a certain way, or you have other similar needs, feel free to contact the Croatian Authors’ Agency. Since many questions are being asked that are open and still have to be confirmed and established in practice, we learn together and work day by day to better understand and control the issues presented. In any case, we are sure that we can assist you with any specific question, ambiguity or idea and together find the most suitable solutions for each problem, even when they are still unexplored in our legal system.