On 12 May 2021, the French Government issued a Statutory Instrument 1 implementing Articles 17 to 23 of the European Union Directive on Copyright in the Digital Single Market 2019/790 of 17 April 2019 (the “Directive”).
France had been a key actor in the negotiations leading to the adoption of the Directive, especially with regard to the protection of authors and rights holders. The French Government pushed, amongst others, for increased accountability and transparency on the part of online content service providers.
France was already the first Member State to implement Article 15 of the Directive in July 2019 by Act of Parliament. Article 17 of the Directive (“Article 17”) was scheduled to be implemented in the same way. Therefore, a draft bill was issued in December 2019 to that effect. However, the parliamentary debates were delayed by a series of national strikes, and were eventually called off due to the Covid-19 pandemic. To meet the implementation deadline, the Government decided to legislate by Statutory Instrument (“Ordonnance”) and this process was approved by Parliament in December 2020 2.
Slight conceptual differences between the Directive and the Statutory Instrument
In the absence of full parliamentary debates, the drafting of the Ordonnance has not significantly deviated from the Directive. The following variations in the notion of online content-sharing service provider can however be noted.
Whilst the Directive provides that Article 17 defines online content-sharing service providers as “information society services of which the main or one of the main purposes is to store and give the public access to a large amount of copyright-protected works or other protected subject matter uploaded by its users, which it organises and promotes for profit-making purposes”, the Ordonnance defines it as “a person who provides an online public communication service, the main purpose or one of the main purposes of which is to store and provide public access to a significant quantity of works or other protected subject matter uploaded by its users, which the service provider organises and promotes for direct or indirect profit”.
The Ordonnance replaces information society services with online public communication services. The definition of information society services makes reference to normally remunerated services (although the CJEU 3 has opted for a broad interpretation of the remuneration criterion), which notion does not exist under the definition of online public communication services. This variation could be interpreted as an effort by the French Government to limit discussions related to defences based on the absence of profits actually generated by the content sharing provider or the merely incidental or secondary aspect of such profits. This approach can also be found in the fact that the Ordonnance has added a reference to “direct or indirect” profits in the definition of online content-sharing service providers.
With regard to the meaning of significant quantity of works, the Ordonnance adds that the assessment of the significance takes into account, inter alia, the number of files of protected content uploaded by the users, the type of works uploaded and the audience of the service. The methodology used for the assessment is to be defined by Government regulation.
Who is caught by the Ordonnance’s implementation of Article 17?
The formal exclusions
The Ordonnance applies to online content-sharing service providers and it reproduces the exclusions set out in the Directive, namely, not-for-profit online encyclopaedia, online marketplaces, business-to-business cloud services and cloud services that allow users to upload content for their personal use.
The Ordonnance adds, to the list of exceptions, service providers of which aim is to infringe copyright and neighbouring rights. This would typically include peer-to-peer and streaming platforms designed to unlawfully share, for view or for download, copyrighted works (such as music and videos). This formal exclusion could be interpreted as a reminder that such platforms are illegal by nature and cannot be regulated by the Ordonnance.
The primary targets
Large social media and video sharing services are the primary targets of Article 17 as implemented by the Ordonnance. The leading social media services that allow users to directly upload third-party content (e.g.: images, text, sounds, videos), are in the scope of the definition of online content-sharing service providers. The same applies to the video sharing platforms allowing users to directly upload third-party videos or create videos created from third-party content, such as third-party images, texts or sounds.
The grey areas
Indirect uploads. Article 17 and the Ordonnance apply to service providers allowing users to upload the copyrighted content. It remains to be clarified whether services allowing users to upload their or third-party material on their platform, subject to review, approval and/or curation of the material by the service provider (e.g. a moderator) before effective publication of the content, are within the scope of the Ordonnance. Such determination would require clarification of the phrase “uploaded by its users”.
Online forums and chats. Online forums and online chats could arguably be caught by the Ordonnance to the extent the services include functionalities that enable the upload of significant quantities of copyrighted works.
Obligations of the online content-sharing service providers
Licensing obligations. The Ordonnance does not significantly vary from the Directive in that it provides that online content-sharing service providers shall be liable for copyright infringement unless they can establish, amongst others, that they have made best efforts to secure a licence. The Ordonnance specifies, in addition, that the licence must be sought “from the rights holders who wish to grant such licence”. This extra wording could be interpreted as an attempt to exclude some categories of licensing mechanisms that do not involve negotiations with rights holders so long as they are remunerated, although further clarification would then be needed given the increased role the Ordonnance has conferred to the collecting management organisations, in its implementation of Articles 18 to 23 of the Directive.
As regards the users’ rights to use the shared content, the Ordonnance indicates that the licence granted by the rights holders shall be deemed to flow down to those users who are not acting on a commercial basis or whose activities do not generate significant revenues.
Takedown and stay down obligations and redress mechanism. The Ordonnance also provides that online content-sharing service providers shall be liable for copyright infringement unless they can establish that (i) they have made best efforts to prevent the access to copyrighted content on which rights holders have, directly or indirectly via a third party they have appointed, provided specific information and (ii) they have promptly complied with infringement notifications requests by promptly taking the content down and blocking it and by making best efforts to prevent the content from being uploaded in the future.
In addition, online content-sharing service providers must provide users with a speedy and efficient redress mechanism after a blocking or take down action. As required under the Directive, the redress mechanism cannot be actioned electronically (or by artificial intelligence), but will require that each complaint be processed by human beings.
Reduced obligations for smaller entities. The Ordonnance has implemented the Directive’s lighter regime for online content-sharing providers of which (i) services have been available to the EU public for less than three years, (ii) annual turnover is below €10 million and (iii) average number of monthly unique visitors does not exceed 5 million. Such smaller companies will only need to comply with the best-effort licensing requirement and the takedown obligation
Sanctions and liability
The criminal penalties from the Criminal Courts for copyright infringement remain unchanged, i.e. up to 3 years’ imprisonment and a €300,000 fine or order to block the infringing content. Criminal sanctions for copyright infringement remain marginal in France and tend to result from large-scale piracy networks.
Complaints can also be lodged before the High Authority for the Distribution and Protection of Intellectual Property on the Internet (“HADOPI”), due to be replaced by a new authority, ARCOM.4 HADOPI has the power to order the takedown of or the blocking of access to the infringing content. Conversely, it can order access to non-infringing content and request that a takedown action be reversed.
What’s next?
Clarification and guidance
The Ordonnance announces that a Government regulation will provide a methodology to determine what constitutes a significant quantity of works in the definition of online content-sharing service provider. This clarification is necessary to have a clearer view of who is caught by the Ordonnance.
A Government regulation is also announced to provide further information on the right to lodge a complaint to HADOPI.
Further, the Ordonnance invites HADOPI to enter into fact-finding consultations with the various stakeholders and then issue guidance and recommendations on (i) the notice and information that rights holders must provide to the online content-sharing service providers and (ii) the effectiveness of the protection measures put in place by the online content-sharing service providers.
With regard to the “best effort” requirements, no guidance or clarification has been mentioned in the Ordonnance. It can therefore be expected that the standards will be defined under case law, and more likely by the CJEU who is currently adjudicating the annulment proceedings (C-401/19) commenced by the Republic of Poland who considers that the filtering obligations set out in Article 17 undermine the right to freedom of expression and information.
Stakeholder negotiations.
The Ordonnance requires HADOPI to encourages cooperation between rights holders and online content-sharing service providers in order to ensure the availability of non-infringing content.
Enforceability
All the provisions of the Ordonnance pertaining to the implementation of Article 17 will be applicable as of 7 June 2021. However, absent the necessary guidance, and interprofessional agreements, their enforceability is likely to be limited, although, in the meantime, this should not prevent rights holders and users from bringing claims based on the Ordonnance for copyright infringement and excessive filtering or takedown.
Authored by David Taylor, Aissatou Sylla, Gabrielle Creppy and Sophia de Almeida Martins
[1] Ordonnance n° 2021-580 du 12 mai 2021 portant transposition du 6 de l'article 2 et des articles 17 à 23 de la directive 2019/790 du Parlement européen et du Conseil du 17 avril 2019 sur le droit d'auteur et les droits voisins dans le marché unique numérique et modifiant les directives 96/9/CE et 2001/29/CE.
[2] Loi n° 2020-1508 du 3 décembre 2020 portant diverses dispositions d'adaptation au droit de l'Union européenne en matière économique et financière, notamment son article 34.
[3] CJEU, Football Association Premier League Ltd, et al., C-403/08 and C-429/08.
[4] Autorité de régulation de la communication audiovisuelle et numérique.
