Video sharing platforms – YouTube, Vimeo and TikTok
Video sharing platforms such as YouTube, Vimeo and TikTok have become primary channels for the distribution of creative work, providing access to a wide range of user-generated content. Those platforms give significant access to cultural and creative works by creating opportunities to develop innovative business models within the cultural and creative industries. However, while facilitating the availability and diversity of content, they also pose legal challenges when copyrighted content is placed on platforms without the prior approval of the copyright holders. In this text, we explore who is responsible for obtaining permissions and paying fees when publishing copyrighted works on those platforms, shedding light on the resulting legal uncertainty in the process.
Responsibility of users and platforms: Where does the legal obligation lie?
Movies, music and other copyrighted content often appear on video sharing platforms in video clips generated by users of those platforms, either as background or as part of the primary narrative. This situation raises a question – who should bear the responsibility for possible copyright infringements when the rights to the posted content have not been obtained? Is it the user who uploaded the content, or the platform itself that allows the content to be shared?
Our existing legal solutions do not adequately address said issue, leaving room for various interpretations. First of all, it is necessary to explain that the act of posting, i.e. displaying author’s works on the platform, in the sense of copyright law, implies interactively making those contents available to the public, which actually means allowing a person individual access to the work from the place and at the time of their choosing, which is the exclusive right of the author or the copyright holder.
The argument that the user is responsible for any unauthorized publication of the work is derived from the fact that they are the one who, by placing protected content on the platform, make the content in question available to the public. On the other hand, we cannot ignore the fact that the platform has a significant influence on what will be shown and the way in which the content will be organized, thanks to its algorithms that direct the audience’s attention. However, platforms are generally not responsible for content posted by users, as they are considered to be mere intermediaries that are subject to the safe harbor rule under the e-commerce regulation. Namely, that rule allows online platforms, including social networks, video sharing platforms, and e-commerce websites, to generally not be held responsible for user-generated content. However, to enjoy that protection, platforms must act quickly and remove illegal material after receiving a valid takedown notice from the copyright holder.
Therefore, by taking into account all of the above, we come to the conclusion that according to the domestic legal frame, it is still the platform users who have the obligation to obtain permission from the copyright holders and pay a fee before publishing protected content.
However, that is difficult to achieve, considering the enormous number of users and the amount of content that is published daily. Moreover, there is often no contact between the copyright holders and the users – the latter are often unable to identify who the copyright holder is, while copyright holders are often unaware that their content has been published online. That situation further complicates the process of compliance with the legal requirements and makes copyright protection more difficult.
EU reaction: Directive as a solution to legal uncertainty
In light of those facts, the institutions of the European Union have taken decisive steps to resolve the gap between the existing regulation and reality regarding the protection of copyright in the digital environment. With the current advancement of digital technologies, it has become apparent that the existing legislative framework is insufficient to protect copyright, especially when copyrighted works are published on video sharing platforms. In that context, Directive (EU) 2019/790 on copyright and related rights in the digital single market of April 17, 2019 represents a key response to that particular legal uncertainty, as it clearly defines the obligation of operators of video sharing platforms to obtain permission from copyright holders before providing access to copyrighted works.
Directive (EU) 2019/790
That directive not only resolves the long-standing dilemma of who bears the responsibility for public communication, i.e. for interactively making copyrighted works available, but also strengthens the position of copyright holders by enabling them to more effectively exercise their rights in the digital environment. Based on that new legislative framework, platform operators can no longer rely on the protection of the safe harbor institution from the previous regulations, but are directly responsible for any unauthorized publication of content on their platforms, which significantly improves the protection of intellectual property rights in the contemporary digital world.
Domestic regulation: The key to advancing copyright in the digital environment
In order to improve the situation on the domestic market, it is important to adapt our legislation so that it reflects the contemporary challenges and realities created by the digital environment. In that sense, we can rely on Directive (EU) 2019/790, which provides clear guidelines and a legal framework for copyright management in the context of video sharing platforms. By introducing those rules, we will not only solve numerous legal uncertainties in relation to the responsibility of users and platforms but we will also achieve a balance between the freedom of expression and copyright protection.
Namely, a clear definition of the obligations that are set for both users and platform operators enables the creation of a more transparent environment in which all participants will be able to act with more security. When users understand their responsibilities in relation to obtaining necessary permissions from copyright holders, they are able to use video sharing platforms without fear of legal consequences. That not only improves creativity and the freedom of expression but also secures the necessary protection to authors and copyright holders.
Moreover, the implementation of those rules will decrease the existing imbalance between the value of the created content and the income earned by the copyright holders. That will create an incentive for further development of the creative industry and provide sustainability for artists, authors, and content creators. Finally, adequate legal solutions can contribute to strengthening the trust in digital platforms, which is crucial for the survival and growth of the domestic market in the era of digitization.
