Does the duration of the storage matter? Live streaming providers as ‘online content sharing service providers’ under the DSM Directive

At a time when physical proximity is strongly discouraged or prohibited tout court through various
measures – ranging from ‘social distancing’ to ‘self-isolation’, from ‘quarantine’ up to strictly enforced ‘lockdowns’ – people have been discovering new or enhancing further the ways through which they connect at a distance, including online. Internet communities are not a new phenomenon, though the events that have been rapidly unfolding over the past few months, due to the Covid-19 outbreak, have contributed to the establishment of new forms of socialization.

For instance, club and music festival goers have nowhere to go these days, but they can still enjoy their favourite DJ sets: the likes of Bob Sinclar, Diplo, and Luciano have been live streaming their mixes through various online platforms, including Facebook, YouTube, Instagram, Twitter, and Twitch.

If DJs were to perform at a physical location, the venue in question would be required to hold a licence for the public performance of protected subject matter (e.g., third-party sound recordings incorporated in the mixes).

But does the same hold true if the venue at which the performance takes places is not a physical one, but rather a virtual venue, which consists of an online platform allowing the live streaming of content to the generality of internet users?

The example is explained further: the user-DJ uploads live video content captured on their device (e.g., a phone, a camera) to the server of Streaming Platform X. That content is then transcoded and re-streamed in real time to any other user who searches for and selects the stream (the user-DJ’s account is set as public). The stream is indexed and is searchable according to metadata describing the content originated by the user-DJ. The content is cached on the servers of Streaming Platform X only insofar as is necessary to enable transcoding and streaming to end-users. The stream is ephemeral and is not preserved for later access.

Would Streaming Platform X in principle need a licence to allow the user-DJ to live stream third-party protected subject matter, e.g. sound recordings?

The answer, especially (though possibly not solely) under the DSM Directive adopted as part of the set of legislative initiatives under the EU Digital Single Market Strategy, may be in the affirmative [see here for an extended analysis].

Platforms that provide their users with live streaming tools and behave like Streaming Platform X may be doing acts restricted by copyright or related rights when such users upload protected subject matter therein, which they then make available to end-users.

They would thus in principle be subject to the application of Article 17 of the DSM Directive, with the result that the treatment that the latter reserves to what in that directive is referred to as ‘online content sharing service providers’ (OCSSPs) would apply to them.

Permission granted

From the InfoSoc Directive to the DSM Directive

Over the past few years, one of the most relevant developments occurred in Europe in respect of online platforms is the possibility to go beyond the traditional approach to responsibility/liability for user-uploaded content (UUC) based on the formally unharmonized national systems of secondary/accessory/indirect liability and the safe harbour regime in the E-commerce Directive and envisage, instead, the primary/direct responsibility/liability of such platforms for the doing of copyright-restricted acts in relation to the making available of such content.

The Court of Justice of the European Union (CJEU) has expressly acknowledged the direct liability of platform operators in the context of its case law on the right of communication to the public within Article 3(1) of the InfoSoc Directive, notably in the 2017 decision in Ziggo (the Pirate Bay case).

In the aftermath of Pirate Bay, questions have arisen whether the conclusion reached therein might be applied to less egregious scenarios than piracy-focussed platforms like the Pirate Bay. National case law has begun emerging. The issue, however, remains not entirely settled, as the number of CJEU referrals currently pending in this area (YouTube, C-682/18; Elsevier, C-683/18; Stichting Brein, C-442/19; and Puls 4 TV, C-500/19) demonstrates. All this said, there is no language in the Pirate Bay judgment, which suggests that the findings achieved therein only necessarily apply to platforms whose business model is piracy-oriented.

In this sense, it is not entirely surprising that the approach adopted in Article 17 of the DSM Directive has been characterized as a ‘clarification’ (recital 64) – or at least a consistent evolution (also in light of the progressive relaxation of what qualifies as an indispensable/essential intervention on the side of the user/defendant) – of the right of communication/making available to the public in the online environment.

Whilst it is true that ‘making available to the public’ in Article 3 of the InfoSoc Directive is intended to refer to ‘interactive on-demand transmissions’ characterized by the fact that members of the public may access them from a place and at a time individually chosen by them, Member States are not prevented from granting the holders of these rights with more extensive protection, which is also such as to cover live streaming of protected content.

What Article 17 of the DSM Directive does that goes beyond the pre-2019 copyright acquis is thus not really the characterization of OCSSPs as subjects that directly perform acts of communication/making available to the public, but rather the fine-tuning of the relevant treatment thereof.

Live streaming platforms as OCSSPs: (ir)relevance of the duration of the storage

If we now go back to the factual scenario presented in the opening, does a live streaming platform that behaves like Streaming Platform X (in our example) qualifies as an OCSSP, so that the treatment envisaged by Article 17 of the DSM Directive applies to it? As mentioned, Streaming Platform X does not retain the content uploaded by the user-DJ in the form of a live stream beyond the time required to make such live stream available to end-users.

Article 2(6) of the DSM Directive defines an OCSSP as “a provider of an information society service 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.” (emphasis added) The provision does not state whether the storage must fulfil a temporal requirement, and the Directive itself notes that the assessment is to be conducted on a case-by-case basis (recital 63).

Did EU legislature intend to exclude live streaming providers that behave like Streaming Platform X in our example?

If it had wished to do so, the DSM Directive might have expressly said so, e.g., when referring to the online content services (licensed ‘online audio and video streaming services’) OCCSPs compete with (recital 62) or when listing - in the second sentence of Article 2(6) – the providers that do not qualify as OCSSPs.

One possible interpretation might be that, since Article 17 of the DSM Directive expressly refers to Article 14 of the E-commerce Directive to exclude the applicability of the hosting safe harbour in respect of OCSSP’s copyright-related activities, the storage performed by OCSSPs of protected content must be neither transient (like that performed by mere conduit providers in Article 12 of the E-commerce Directive) nor temporary (like that of caching providers in Article 13 of the E-commerce Directive) for the purpose of Article 2(6) of the DSM Directive.

Whilst this interpretation would have some merit, it would also carry a number of shortcomings which, ultimately, suggest that it should be rejected.

It would be in fact logically incorrect to look at the E-commerce Directive for a clarification of the concept of OCSSP: the safe harbours of the former are limitations to liability for third-party unlawful activities, while Article 17 of the DSM Directive is about own acts of the provider. Hence, OCSSPs by their very nature do not ‘behave’ like hosting providers in the E-commerce Directive. In addition, if OCSSPS were only providers that perform the storage in the same way as the providers described in Article 14 of the E-commerce Directive, it would be difficult to understand why EU legislature eventually chose to adopt the ad hoc notion of OCSSP.

In reality, the reference to Article 14 of the E-commerce Directive in the text of Article 17 of the DSM Directive does not serve to exclude OCSSPs that only perform a temporal storage from the application of Article 17 therein. First, if such providers optimized the presentation of content and communicated/made it available to the public, they would not in any case qualify as providers that perform an “automatic, intermediate and temporary storage” within the meaning of, e.g., Article 13 of the E-commerce Directive. Second, they would pursue the same purpose and have the same role of OCSSPs as defined in Article 2(6) of the DSM Directive.

Conclusion

Article 17 of the DSM Directive has introduced a detailed regime for OCSSPs, which moves from the assumption that these providers perform acts of communication/making available to the public. Article 2(6) provides a definition of ‘OCSSP’, which incorporates the ‘storage’ of protected subject matter as one of the relevant requirements or limitations. The provision does not clarify whether the storage is subject to any temporal requirements to be ‘storage’ for the purpose of Article 17, but there appear to be no particular requirements or restrictions in relation to the temporal dimension thereof.

Live streaming providers that behave like Streaming Platform X in the example above are to be regarded as OCSSPs in principle, even if the storage made of UUC (in the example: a live stream, which also incorporates protected subject matter, e.g., third-party sound recordings) is limited in time. What is relevant for the qualification of a provider as an OCSSP is the purpose that the provider pursues (to store and give the public access to a large amount of protected subject matter uploaded by users for profit-making purposes) and, with that, the role that it performs (organization and promotion of such subject matter), not the duration (e.g., permanent or temporary storage of protected content) of the activity at hand. As such, like other OCSSPs, also providers behaving like Streaming Platform X appear in principle required to make best efforts to seek to conclude licences for the communication/making available of third-party protected content in order to eventually secure such licences or protect themselves from liability in accordance with the regime envisaged by Article 17(4) of the DSM Directive.