Does the Copyright Directive also apply in practice to Estonian companies?

Under the new Copyright Directive 2019/790, online content sharing service providers must obtain an authorization from copyright holders to distribute copyrighted works through their platform. Otherwise, companies are liable for the copyright-infringing content uploaded by users.

In the absence of an authorization to use copyrighted content, companies must use “filtering” to ensure that copyrighted content is not available on the platform and to disable access to such material, or to remove it from their websites upon notice from rights holders.

Who needs to apply filtering?

Filtering must be applied by online content-sharing service providers, i.e. information society service providers whose 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 organizes and promotes for profit-making purposes.

Online content-sharing service providers include Youtube, Facebook, Instagram, Vimeo, Pinterest, Tumblr, Reddit, Twitter, and Medium. Online content-sharing service providers may also include public not-for-profit forums.

Do exceptions apply?

The following are not considered to be online content-sharing service providers:

  • not-for-profit online encyclopedias, such as Wikipedia;
  • not-for-profit educational and scientific repositories, Europeana;
  • open-source software-developing and-sharing platforms, such as GitHub;
  • electronic communications services, such as Whatsapp;
  • online marketplaces, such as eBay;
  • business-to-business cloud services and cloud services that allow users to upload content for their own use, such as Dropbox.

Start-ups that do not have to apply filtering are also considered as an exception. A start-up is a company that has been operating in the European Union for less than three years and has an annual turnover of fewer than 10 million euros.

Where the average number of monthly unique visitors of such service providers exceeds 5 million, calculated on the basis of the previous calendar year, they must filter the content (The largest amount of unique visitors in Estonia is with 270 000 unique visitors per week). However, start-ups must upon receiving a sufficiently substantiated notice, disable access to the notified works or other subject matter or to remove those works or other subject matter from their websites.

Should Estonian companies apply the filtering obligation? – no need, online marketplace.

Fleep – no need, electronic communications service.

Auto24 – no need, annual turnover less than 10 million.

City24 – no need, annual turnover of less than 10 million.

Rate – no need, annual turnover of less than 10 million.

Delfi – must apply the filtering obligation (turnover of Ekspress Meedia AS for the financial year 2017 € 18,832,331).

Brand Estonia – no need, open-source software development and sharing platform / not-for-profit educational and scientific information repository.

Postimees – must apply the filtering obligation (turnover of Postimees Grupp AS in the financial year 2017 € 37,809,000).

Moodle – not-for-profit educational and scientific repository.

Genius – no need, annual turnover of less than 10 million.

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