21st Century Copyright Law 101: Responsibilities of Online-Sharing Platforms in Copyright Protection

Foreword

Thanks to the booming internet era and the rapid development of digital technology, literary and artistic works are known worldwide. At the same time, creative works increase in terms of quantity and quality, raising concerns about copyright protection worldwide. While applicable copyright laws are strictly governed by national legislation and international treaties, many questions still arise about protecting the works, especially on digital platforms. Therefore, the 21st Century Copyright Law 101 series aims to summarise some of the introductory provisions of international copyright law and then analyse specific aspects of protecting works under copyright law, thus trying to answer about copyright protection in both traditional and digital markets.

This series is divided into the following chapters:

21st Century Copyright Law 101: What is Copyright Law?
21st Century Copyright Law 101: Works are protected under Copyright Law
21st Century Copyright Law 101: Copyright and AI-Generated Artwork
21st Century Copyright Law 101: How to protect works under Copyright Law?
21st Century Copyright Law 101: Copyright Infringement in Cyberspace
21st Century Copyright Law 101: Compensation for Damage caused by Copyright Infringement
21st Century Copyright Law 101: Responsibilities of Online-Sharing Platform Operators in Copyright Protection

In the digital age, online-sharing or streaming platforms play a crucial role worldwide. Facebook, YouTube, Twitter, Spotify and Netflix have become a part of people’s lives. Users can share, listen, watch and read many kinds of works on those platforms, including copyrighted ones. At the same time, those online platforms are also critical economic drivers with many business opportunities and create many kinds of online jobs, such as content creation or streaming. Whether or not the current legal framework binds these operators’ obligations to protect online copyright, this article outlines the current legal status of some jurisdictions and the reality of applying these laws in a digital society.

The European Union (EU) Framework for Copyright Protection in Digital Market

There are some main legal instruments of the EU to regulate the obligations of the online-sharing platform regarding copyright protection, such as the EU Copyright Directive (2001/29/EC), the EU Orphan Works Directive (2012/28/EU), the E-Commerce Directive and the Digital Single Market Directive. While the EU Copyright Directive sets out the rights and obligations of copyright holders and users in the digital environment, the Orphan Works Directive only focuses on providing a framework for the use of orphan works, which are works whose authors are unknown or cannot be located. From the digital market perspective, this directive aims to address the challenge posed by the growing number of orphan works in the digital environment and to ensure that these works can be used in a way that benefits society.

The EU E-Commerce Directive is a crucial piece of EU legislation that sets out the legal framework for electronic commerce in the EU. The directive establishes the liability regime for intermediaries, such as online platforms, that provide services over the internet. Regarding copyright protection, the E-Commerce Directive provides that online platforms are not liable for infringing copyright if they act as passive intermediaries, i. e. they do not have knowledge of the infringing activity and do not benefit financially from it. The Directive also provides that online platforms must remove or disable access to infringing material once they have received a notice from the rightsholder.

Figure 1: Council of Europe Flag (Doğukan Ejder, 2023)

With more focus on the obligation of online-sharing platform operators, the EU Information Society Directive (2001/31/EC) was launched on 22nd May 2001, which is the harmonization of certain aspects of copyright and related rights in the information society. This Directive focused on the liability of intermediaries for copyright-infringing content transmitted or stored on their platforms. The Directive sets out the conditions under which intermediaries can be held liable for copyright-infringing content and provides safe provisions that protect intermediaries from liability if they comply with certain conditions. However, this Directive has since been replaced by the Digital Single Market Directive, which came into effect in 2021.

The Digital Single Market Directive, also known as the DSM Directive, is a piece of EU legislation that aims to create a single market for digital services and content within the EU. The DSM Directive aims to “provide for a high level of protection for right holders, facilitate the clearance of rights, and create a framework in which the exploitation of works and other protected subject matter can take place” (the DSM Directive, Recital 1). At the same time, the DSM Directive points out that rapid technological developments continue to transform the way works and other subject matters are created, produced, distributed and exploited. This Directive provides rules to adapt certain exceptions and limitations to copyright in digital and cross-border environments (the DSM Directive, Recital 2). Therefore, the online operators’ role has to be mentioned in this Directive.

More than 20 years ago, the E-Commerce Directive released several intermediary platforms from liability when users performed illegal acts against their services, including piracy. However, since the DSM Directive was announced, more responsibility has been imposed on online sharing service providers. In particular, these obligations are outlined explicitly in Article 17 of the DSM Directive, which holds the operators of this platform directly responsible for the behaviour of users when they upload pirated content to their services. Therefore, online sharing service providers must obtain their permission for such uploads or provide their “best efforts” to obtain permission from the right holders.

Moreover, they have the obligation to ensure that unlawful content is not being made available or that they are removed upon request (Geiger, C. 2021). To elaborate, this Directive states that when no authorisation is granted, online content-sharing service providers shall be liable for unauthorised acts of communication to the public, including making copyright-protected works available to the public (The DSM Directive, Article 17(4)). However, this Directive also gives an exception for these providers. They will be exempt from liability when they demonstrate that they have the following:

“(a) made best efforts to obtain an authorisation, and (b) made, in accordance with high industry standards of professional diligence, best efforts to ensure the unavailability of specific works and other subject matter for which the rightholders have provided the service providers with the relevant and necessary information; and in any event (c) acted expeditiously, upon receiving a sufficiently substantiated notice from the rightholders, to disable access to, or to remove from their websites, the notified works or other subject matter, and made best efforts to prevent their future uploads in accordance with point (b)” (The DSM Directive, Article 17(4)).

This regulation shows that these online sharing service providers act as a gate to review uploaded works if it is found that infringing works will prevent it from the outset. If a work uploaded on their platform is reported to infringe on copyright, they – as a defender – must promptly verify and remove the work from their platform. This regulation both stimulates the development and binds the legal responsibility of online sharing platforms.

Figure 2: The Role of EU Legislation in Copyright Protection (The Economist, 2018)

Vietnamese Legal Framework on Copyright Protection in the Cyberspace

According to Vietnam’s Intellectual Property Law, regulations on acts identified as infringing the copyright (Article 28, Law on Intellectual Property) and regulations on measures to handle copyright infringement. However, no separate legal document specifically regulates copyright protection on digital platforms. Besides the Law on Intellectual Property, cyberspace-related issues are scattered in documents such as the Law on Electronic Transactions 2006 or the Law on Information Technology 2006.

However, these documents do not mention copyright protection on these platforms. In addition to these laws, Vietnam is a member of several international treaties related to copyright protection, including the Berne Convention for the Protection of Literary and Artistic Works, the Copyright Treaty of The World Intellectual Property Organization (WIPO) and the WIPO Performances and Phonograms Treaty. These treaties set international standards for copyright protection that Vietnam must respect as a signatory country but do not provide for the liability of intermediary service providers in cyberspace.

Therefore, in Vietnam there is no regulation binding the obligations of these platforms. Even when a copyright dispute occurs, the person who directly publishes the copyrighted works is the defendant in the cases resolved in the Court (Article 68(3) Vietnam Civil Procedure Code). The operators of the online platforms are only defendants when they directly upload pirated works to their platforms.

Figure 3: Upload filters must respect user rights (Digital Freedom Fund, 2018)

The Reality of the Responsibilities of the Operators of Online-Sharing Platforms in Copyright Protection

The DSM Directive of the EU is an alarm bell for sharing platform operators worldwide. For instance, YouTube is widely recognized as a global platform to share and watch videos for free. In response to worldwide legal criteria, YouTube offers general measures for copyright protection on its platforms, such as review of uploaded works, copyright complaints and removal of infringing content, termination of repeat infringers, or partnership with rights holders. YouTube introduces these measures and copyright management tools, including Copyright Takedown Webform; Copyright Match Tool; Content Verification Program; and Content ID (YouTube Help. n.d.).

According to YouTube’s general copyright protection policy, copyright owners must register their copyrights on this platform by providing audio or video recordings to YouTube and then, by using the “Content ID“ system, YouTube will automatically scan subsequent uploads (YouTube Help. n.d.). If there is a match with the copyright previously registered by the owner, the owner receives the notification and can apply a treatment for the content in this YouTube video. The problem is, how can YouTube determine the actual owner of the work when it can only be done by filling out the application form and presenting the user claiming to be the copyright owner?

Recently, many musicians and artists have been upset by their works being marked as a copyright infringement on YouTube. According to the Ethnic and Development News, Vietnam reported on 12th November 2021, the musician Giang Son complained that copyright infringement on her work caused great public opinion. In a letter sent to the Vietnam Center for Protection of Music Copyright (VCPMC), musician Giáng Son said that on 25th September 2021, she established a YouTube channel called Giang Sol Official to share her works. On this channel, she uploaded her song Giấc Mơ Trưa (Noon Dream), arranged separately with vocalist Khanh Linh in the album Giang Son. With this album, she has the copyright of her songs. However, a few days later, she received a complaint notice from BH Media on behalf of Ho Guom Audio Video claiming to be the copyright owner. In practice, she did not sign the copyright with this unit at all (Dan Toc & Phat Trien, 2021).

The question is, on what basis did YouTube determine that BH Media was the copyright owner? This issue is one of the shortcomings of the Content ID system, as it cannot always correctly identify the actual owner of the content on that platform.

Figure 4: Protection on Social Media. Redpoints.

Facebook is also a social media platform where copyrighted works can be published or shared worldwide. To fulfill the responsibility of copyright protection, Facebook has implemented several policies and procedures to protect the rights of copyright owners. For example, users must read the IP Policy before creating an account. This policy provides that users must respect the intellectual property rights of others and not post content that infringes on someone else’s copyrights.

In addition, Facebook has a system for dealing with copyright infringement complaints, known as the Intellectual Property Report Form (Meta Business Help Centre, n.d.). Rightsholders can use this form to report alleged copyright infringements to Facebook, which will review the complaint and remove infringing content if necessary. It is also worth noting that Facebook has implemented automated systems, such as its Rights Manager tool, to help rightsholders identify and manage copyrighted content on the platform. This tool includes the following actions:

“Monitor content: Allow matching content to remain posted and visible on Facebook and see how matching content performs over time. Collect ad earnings: Allow matching content to remain posted and claim earnings from any ads placed in your video. Note: this feature is not available to everyone. Block content to prevent anyone from viewing the content except the person who uploaded it. Request a takedown of matching content because the uploader has violated your intellectual property” (Meta Business Help Centre , n.d.).

In this way, the efforts of those operators can be seen in copyright protection and user rights protection on their platforms. Although there are jurisdictions that do not bind these service providers, considering their borderless nature, these operators are working day by day to meet the global legal criteria.

Figure 5: Rights of the Author Illustration (Wordpress, 2013)

Conclusion

Online-sharing platform operators are responsible for respecting the rights of copyright holders and preventing copyright infringement on their platforms. Both international and national laws establish this responsibility. To fulfill the responsibility of copyright protection, online-sharing platforms have implemented various policies and procedures, such as IP policies, complaint systems, and automated tools. These measures help to ensure that the rights of copyright holders are protected while also allowing online-sharing platforms to operate in compliance with the law. As the digital economy continues to grow, it is crucial for online-sharing platforms to remain vigilant in their efforts to protect copyrights and respect copyright holders’ rights.

Bibliographical References

Act on Copyright and Related Rights (Urheberrechtsgesetz – UrhG). (n.d.). Www.gesetze-Im-Internet.de. Retrieved December 17, 2022, from https://www.gesetze-im-internet.de/englisch_urhg/englisch_urhg.html

Bảo vệ bản quyền tác giả âm nhạc trên môi trường số [Protecting music copyrights in the digital environment]. (2021, November 12). Báo Dân Tộc Và Phát Triển. https://baodantoc.vn/bao-ve-ban-quyen-tac-gia-am-nhac-tren-moi-truong-so-1636692854070.htm

Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC

‌Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the Enforcement of IntellectualProperty Rights

Geiger, C. (2021, January 30). Platform liability under Article 17 of the Copyright in the Digital Single Market Directive, Automated Filtering and Fundamental Rights: An Impossible Match. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3776267

Meta Business Help Centre - Copyright management tools. (n.d.). Facebook. https://www.facebook.com/unsupportedbrowser?id=237023724106807

Overview of copyright management tools - YouTube Help. (n.d.). https://support.google.com/youtube/answer/9245819?hl=en

The Civil Procedure Code, Vietnam.

‌The Intellectual Property Law, Vietnam.