Goodbye Safe Harbor: What Content-Sharing Platforms Available in Europe Need to Do Now to Avoid Liability

Christiane Stuetzle, Patricia Ernst, and Susan Bischoff authored an article for Law360 covering how online content service providers must act to mitigate risks and avoid liability under the European Union’s Copyright Directive, created in an effort to strengthen the rights of copyright-holders by making certain platforms that host user-uploaded content (UCC) liable for copyright infringements.

“Until now, throughout the EU, platforms hosting UCC have profited from the safe harbor privilege under the EU E-Commerce Directive, which has been shielding platforms from liability for copyright-infringing user uploads for more than 20 years,” the authors wrote. “This safe harbor privilege implies that online content service providers (OCSSPs) only need to remove copyright-infringing content upon notice (notice-and-take down procedure) to avoid liability for copyright infringement.”

They added: “The Directive’s rationale is to close the so-called ‘value gap,’ a term used to describe rights-holders’ missing remuneration if their works are uploaded and shared by users. While rights-holders have a remuneration claim against such users (though it is difficult to enforce and rarely valuable commercially), they did not have a claim against OCSSPs until now. The Directive’s new liability overhauls this substantially: OCSSPs will be considered to commit copyright infringement by making illegal UCC available.”

Read the full article.