The question of the platform responsibility was at the heart of the seminar on the value gap held on Tuesday 11 April by the French Permanent Representation to the EU. During the seminar, several experts criticised the different interpretations of the European Court of Justice and called for the platforms to given appropriate responsibility, so that they can play an active role.
It should be pointed out that in September 2016, the Commission proposed a requirement incumbent on all platforms, including the smaller ones, “to take measures, such as the use of efficient content recognition techniques, in an effort to ensure the effective functioning of the agreements concluded with rights holders when their content is being used” (in consideration of articles 8 and 13). The objective is to reduce the value gap, a principle according to which certain online platforms provide content free of charge and without necessarily remunerating rights holders.
Alexandra Bensamouna lecturer at the University of Rennes 1 and co-author of the report on the right of communication to the public, said that the directives 2000/31EC (e-commerce) and 2001/29/EC (Infosoc) do not offer sufficient guarantees to rights holders. She added that this situation had not been improved by the different rulings by the European Court of Justice. She concluded that, “The draft directive does not contain anything new but if we withdraw clause 38, this runs the risk of creating a mistaken interpretation and motive, according to which, as soon as there is ignorance, there is a passive platform role and therefore no responsibility”. She also explained that, “the draft directive clarifies the notion of the active role and helps tackle counterfeiting through dialogue with the rights holders (dialogue, proportionality and balance are back again)”. Her report was co-drafted by Professor Pierre Sirinelli (Université Paris 1 - Panthéon Sorbonne) at the request of the Higher Council for Literary and Artistic Property and recommends as a minimum, clarification that there is communication to the public as soon as this communication goes beyond the family circle.
Therese Comodini-Cachia MEP (EPP, Malta), rapporteur for the European Parliament also attended the seminar and explained that she was neither totally satisfied with the Commission proposal nor her own report. She indicated that, “We have identified the challenges but at this stage we are not yet providing legal certainty”. She said that she was particularly concerned by the platforms that are currently falling into something of a grey area and explained, “The proposal and my report both attempted to tackle the platforms that are not covered by the E-commerce directive. At this stage, however, they cover platforms such as the Dutch company that transforms 3-D portraits and publishes these images on its website. Is this really what we want? I think we have still not yet found the correct modalities”. The draft reports can be seen at: http://www.culturecommunication.gouv.fr/Thematiques/Propriete-litteraire-et-artistique/Conseil-superieur-de-la-propriete-litteraire-et-artistique/Travaux/Missions/Mission-du-CSPLA-sur-le-droit-de-communication-au-public . (Original version in French by Sophie Petitjean)